Citation: Regina v Michael Sassin [2002] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 15 February 2002
Judge(s): Kirby J, Buddin J
Background
The applicant was sentenced in the District Court in July 2001 on two offences: aggravated break, enter and commit a serious indictable offence (a violent home invasion occurring in March 2000), and a separate offence of break, enter and steal (committed in January 2001). The sentencing judge, Finnane DCJ, imposed a total effective sentence of three years and six months with a non-parole period of two years and six months.
The home invasion was a serious group offence. The applicant and four others entered a family home, confronted the occupants, assaulted the principal victim with baseball bats causing significant bleeding, and demanded money. Finnane DCJ made a favourable finding that the applicant had acted as a lookout outside the premises, rather than as one of those who inflicted violence inside.
The applicant appeared unrepresented on his application for leave to appeal. His primary complaints were that his sentence was disproportionately harsh compared to two co-offenders sentenced separately, and that the second sentence should have been ordered to run concurrently with the first.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and those received by co-offenders Christian Kaye and Paul Seru
- Whether Finnane DCJ erred by ordering the sentence for the second offence to be served cumulatively, rather than concurrently, with the first sentence
Decision
On the parity ground, the Court of Criminal Appeal found no error in Finnane DCJ's approach. The Court identified several features that meaningfully distinguished the applicant's circumstances from those of his co-offenders. Both co-offenders had pleaded guilty at an early stage and demonstrated remorse, entitling them to greater sentencing discounts. Mr Seru had no prior imprisonment history and a less significant criminal record. Neither co-offender faced sentencing for a wholly separate offence committed after the home invasion.
The applicant's position was aggravated by his late guilty plea (attracting only a 12.5% discount), his significant history of break, enter and steal offences, his prior experience of imprisonment, and the fact that he committed both offences while on parole. Applying the principles from Lowe v The Queen, the Court confirmed that equal sentences are not required where the personal circumstances and roles of co-offenders differ materially.
On the question of concurrency, the Court found no basis for error. The second offence was entirely unrelated to the first, was committed many months later, and occurred while the applicant was on parole. The Court held that ordering the sentences to accumulate fell within the sentencing judge's proper discretion, and that the overall sentence was not unduly severe.
The Court also considered whether any apparent inconsistency between the finding of "special circumstances" (relating to the applicant's drug rehabilitation efforts) and the structure of the second sentence constituted error. The Court was not persuaded any error existed, and noted that even if it had, a different sentence would not have been warranted under s 6(3) of the Criminal Appeal Act.
Orders Made
- Application for leave to appeal granted
- Appeal dismissed
Key Takeaways
- A justifiable sense of grievance from sentencing disparity does not arise automatically where co-offenders differ in their criminal histories, the timing and nature of their pleas, their expressions of remorse, or their respective roles in the offence.
- Under the principles affirmed in Lowe v The Queen (1984) 154 CLR 606, equal sentences are only appropriate where other relevant factors are also equal, which will rarely be the case in multi-offender matters.
- Committing offences while on parole is a recognised aggravating factor, particularly where the conduct is similar in nature to the offences for which parole was granted.
- A late guilty plea, entered only after damaging evidence was admitted at trial, will attract a materially smaller discount than an early plea accompanied by genuine remorse.
- No error was established in the cumulative structuring of a sentence for an unrelated offence committed on parole, even where a "special circumstances" finding had been made in respect of the primary sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit serious indictable offence)
- Criminal Appeal Act (NSW), s 6(3)
Cases
- Lowe v The Queen (1984) 154 CLR 606