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Court of Criminal Appeal 10 December 2002

R v McIvor

[2002] NSWCCA 490

Also reported as (2002) 136 A Crim R 490
Assault & violenceTheft & property
CRIMINAL LAW ROBBERY IN COMPANY CRIMES ACT 1900 (NSW) S 97(1) SENTENCE ADEQUACY CROWN APPEAL

Citation: R v McIvor [2002] NSWCCA 490
Court: NSW Court of Criminal Appeal
Date: 10 December 2002
Judge(s): Heydon JA, Levine J, Carruthers AJ

Background

The respondent pleaded guilty to two counts of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years' imprisonment. Both offences were committed in August 2001 at a shopping centre in Liverpool, in company with a co-offender, Janian Hernando. In the first robbery, the respondent produced a knife; in the second, Hernando wielded the knife while the respondent stood behind the victim's girlfriend, contributing to the fear induced.

The sentencing judge in the District Court imposed concurrent sentences: two years' imprisonment with a non-parole period of approximately seven months on the first count, and a fixed term of six months on the second. The respondent was sentenced after Hernando had received substantially similar sentences for the same offences.

The Crown had separately appealed against Hernando's sentences on the ground of manifest inadequacy. That appeal failed, not on the merits, but because the Crown had filed it out of time. The Crown then pursued the present appeal against the respondent's sentences on the same inadequacy grounds.

  • Whether the sentences imposed on the respondent for robbery in company were manifestly inadequate.
  • Whether the Court of Criminal Appeal should exercise its discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to intervene and increase the respondent's sentences, in circumstances where the Crown's earlier appeal against the co-offender's identical sentences had failed due to Crown delay.
  • Whether the principles of sentencing parity meant that increasing one co-offender's sentence, while leaving an identical sentence on the other co-offender undisturbed for procedural reasons, would generate a justifiable sense of grievance antithetical to rehabilitation.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously. Heydon JA (with Levine J and Carruthers AJ agreeing) reasoned that the two co-offenders' objective and subjective circumstances were substantially alike. Although the respondent's position was marginally worse because he was in breach of a Local Court bond at the time of the offences, the court concluded that if the sentencing judge reached the right result for Hernando, he also reached the right result for the respondent, and any error in one case necessarily meant error in the other.

The court acknowledged that the respondent could not directly invoke the Crown's delay in Hernando's case as a ground personal to him. However, the court found that increasing the respondent's sentences while Hernando's remained unchanged would be likely to excite a justifiable sense of grievance in the respondent. Critically, that disparity would not reflect any genuine difference in the objective circumstances of the crimes or the subjective backgrounds of the two offenders.

Heydon JA distinguished the authorities relied on by the Crown, including Lowe v R and two unreported decisions, on the basis that those cases concerned attempts by convicted persons to have their own sentences reduced by reference to a co-offender's more lenient sentence. The present situation was different: it involved whether a sentence on one co-offender should be raised while a materially identical sentence on the other remained fixed for an adventitious, procedural reason.

The court found that a justifiable sense of grievance of this kind would be likely to generate bitter resentment, which would be antithetical to rehabilitation and the avoidance of reoffending. In those circumstances, the court exercised its discretion under s 5D of the Criminal Appeal Act 1912 not to interfere with the sentences.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing parity principles are not limited to appeals by offenders seeking to reduce their own sentences; they also inform the court's discretion when the Crown seeks to increase one co-offender's sentence while an identical sentence on the other remains undisturbed.
  • Where a Crown appeal against a co-offender's sentence has failed for procedural reasons unrelated to the merits, that outcome is a relevant factor when the court considers whether to increase a co-offender's materially identical sentence.
  • A justifiable sense of grievance arises where a disparity between co-offenders' sentences would not reflect any difference in the objective facts of the offending or the offenders' personal circumstances, but would instead result from an adventitious procedural circumstance.
  • Under s 5D of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal retains a discretion not to intervene even where appellable error by the sentencing judge may be assumed, and that discretion may be exercised to avoid an outcome likely to generate resentment antithetical to rehabilitation.
  • Authorities such as Lowe v R (1984) 154 CLR 606, which addressed attempts to reduce a severe sentence to match a lenient co-offender's sentence, do not apply without modification where the question is whether to raise one sentence while an equivalent sentence on a co-offender remains fixed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Hernando [2002] NSWCCA 489
- Lowe v R (1984) 154 CLR 606
- R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993)
- R v Steele (Court of Criminal Appeal, unreported, 17 April 1997)