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Court of Criminal Appeal 15 November 2002

R v Schultz

[2002] NSWCCA 462

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEA OF GUILTY AGGRAVATED ROBBERY IN COMPANY ON FORM 1 APPEAL ALLOWED.

Citation: R v Schultz [2002] NSWCCA 462
Court: NSW Court of Criminal Appeal
Date: 15 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The applicant pleaded guilty in the District Court to detaining a person with intent to hold him for advantage, an offence under s 90A of the Crimes Act 1900 carrying a maximum sentence of 14 years imprisonment. An offence of aggravated robbery committed in company was taken into account on a Form 1 (a procedure by which additional offences are acknowledged at sentencing without separate conviction).

The offending arose from a scheme to recover money allegedly owed in connection with a fraudulent loan scheme. The victim was lured to a residence, seized at gunpoint by a co-offender, handcuffed, and transported to a security business premises. There, the applicant took the victim's wallet, used a bank card to withdraw money from ATM machines on consecutive days, and accompanied the victim home only after the victim signed an IOU and arranged for friends to provide funds.

The applicant and his principal co-offender, Nasrallah (who organised and led the scheme), each received the same sentence at first instance: five years imprisonment with a non-parole period of two and a half years. The applicant sought leave to appeal, arguing that the sentence was manifestly excessive given his lesser role compared to Nasrallah.

  • Whether the sentencing judge erred by imposing identical sentences on the applicant and Nasrallah, despite their materially different roles in the offending
  • Whether the 50 per cent reduction in the non-parole period (relative to the head sentence) was appropriate in the circumstances
  • Whether the applicant had a justifiable sense of grievance arising from the parity of his sentence with that of a more culpable co-offender (the parity principle)

Decision

Wood CJ at CL, with Dowd J and Bell J agreeing, found that the sentencing judge had erred by equating the sentences of the applicant and Nasrallah without adequate justification. Nasrallah's role was materially more serious: he conceived and led the offence, made the threats, used the replica pistol, and had 11 additional Form 1 matters (including document fraud offences). The applicant, by contrast, had a more limited and subordinate role, and no prior criminal history beyond serious traffic offences.

Applying the parity principle, the Court found the applicant had a justifiable sense of grievance. The co-offenders' differing culpability required differentiated sentences. The Court also noted that Nasrallah's sentence was, if anything, unduly lenient given his conduct, but this did not eliminate the applicant's grievance arising from the unjustified equivalence.

The Court accepted that some reduction in the statutory non-parole period ratio was warranted given the applicant's background and the need for extended supervision on parole. However, the 50 per cent reduction applied below was considered excessive and unjustified by adequate reasons. A more modest adjustment was appropriate.

The Court noted that any reduction of sentence on appeal must still reflect the objective seriousness of the offence, citing R v Rushby [1977] 1 NSWLR 594 and R v Dodd (1991) 57 A Crim R 349.

Orders Made

  • Leave to appeal granted
  • Sentence below quashed
  • Applicant sentenced to imprisonment for four years, commencing 6 September 2001 and expiring 5 September 2005
  • Non-parole period of two years and three months fixed, commencing 6 September 2001 and expiring 5 December 2003

Key Takeaways

  • Identical sentences imposed on co-offenders with materially different roles and culpability can constitute a sentencing error, entitling the less culpable offender to a justifiable sense of grievance under the parity principle.
  • A finding of special circumstances justifying a reduction in the statutory non-parole period ratio must be supported by identifiable reasons; an unexplained 50 per cent reduction was found to be excessive in this case.
  • Where the more culpable co-offender's sentence is itself unduly lenient, this does not extinguish a less culpable offender's parity-based grievance arising from unjustified equivalence.
  • Reducing a sentence on appeal does not permit departure from the requirement that the revised sentence still reflect the objective seriousness of the offence, as confirmed in R v Rushby and R v Dodd.
  • Form 1 matters (here, aggravated robbery in company) carry real weight at sentencing and must be factored into the comparative analysis when assessing parity between co-offenders.

Legislation and Cases Referenced

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

Cases
- Lowe v The Queen (1985) 154 CLR 606
- Malvaso v The Queen (1989) 168 CLR 227
- Postiglione v The Queen (1997) 189 CLR 295
- R v Boney [2001] NSWCCA 432
- R v Chad (NSWCCA, 13 May 1997)
- R v Diamond (NSWCCA, 18 February 1993)
- R v Dodd (1991) 57 A Crim R 349
- R v Everett (1994) 74 A Crim R 241
- R v Gamble (1984) 14 A Crim R 179
- R v Ilbay [2000] NSWCCA 251
- R v Jermyn (1985) 16 A Crim R 269
- R v Milson (NSWCCA, 10 December 1997)
- R v Palu [2002] NSWCCA 381
- R v Quatami [2001] NSWCCA 353
- R v Reardon (1996) 89 A Crim R 180
- R v Rushby [1977] 1 NSWLR 594
- R v Steele (NSWCCA, 17 April 1997)