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Court of Criminal Appeal 6 February 2003

R v Charle Azzi

[2003] NSWCCA 10

Assault & violenceTheft & property
CROWN APPEAL AGAINST SENTENCE QUESTION OF PARITY WITH A CO OFFENDER

Citation: R v Charle Azzi [2003] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 6 February 2003
Judge(s): Hodgson JA, Sully J, Buddin J

Background

The respondent pleaded guilty in the District Court to armed robbery committed on 3 January 2002 at a Padstow service station, where he entered the premises wielding a length of timber and demanded money from the console operator. A second, similar offence committed four days earlier at a Moorebank service station was taken into account on sentencing. Both offences were committed with a co-offender, the respondent's then-girlfriend.

Judge Goldring at Campbelltown District Court sentenced the respondent to two years' imprisonment, then suspended execution of that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999, conditional on the respondent entering into a bond. The Crown appealed, contending the sentence was manifestly inadequate, and raised parity concerns given the co-offender's sentence.

The co-offender had been sentenced separately by Judge Payne and received a suspended two-year term for the Padstow offence, plus two cumulative sentences of 200 hours' community service for the Moorebank and a third offence. Her sentence reflected a 50% discount for her early pleas and substantial assistance to authorities, including identifying the respondent to police and agreeing to give evidence against him.

  • Whether the sentence imposed on the respondent was manifestly inadequate, particularly having regard to the guideline judgment in R v Henry on armed robbery sentencing
  • Whether a parity issue arose from the disparity between the respondent's sentence and that of his co-offender, given the different roles and circumstances of each
  • Whether, even if the sentence was found to be manifestly inadequate, the Court should exercise its discretion to dismiss the Crown appeal rather than re-sentence the respondent

Decision

The Court of Criminal Appeal accepted the Crown's primary contention that the sentence was manifestly inadequate. The respondent's role was more serious than his co-offender's: he was the instigator, he actively wielded the weapon in both offences, and he did not provide the same level of assistance to authorities that the co-offender had. The co-offender's sentence had been significantly reduced by a 50% discount that did not apply to the respondent in the same measure.

Despite finding inadequacy, the Court turned to whether it should intervene. Expert evidence before the Court established that the respondent had an intellectual disability and elevated stress levels, and that incarceration would expose him to serious risks of exploitation and manipulation by other inmates. The Court sought further information from the Crown about whether periodic detention could be ordered as an alternative disposition, to address both the inadequacy finding and the respondent's vulnerability.

The Crown was unable to satisfy the Court that appropriate supervision arrangements would be in place for a person with the respondent's particular vulnerabilities in a periodic detention setting. The Court noted that more than four months had elapsed since the original sentence, and that the possibility of periodic detention had been clearly flagged in the respondent's written submissions, giving the Crown adequate time to investigate. In those circumstances, the Court exercised its discretion to dismiss the appeal without re-sentencing, while expressly noting the order was limited to the unusual facts of the case.

The Court also recorded that Crown counsel, when informed that dismissal was the Court's likely course, responsibly indicated he did not seek to persuade the Court otherwise.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A finding of manifest inadequacy does not automatically compel the Court of Criminal Appeal to intervene and re-sentence; the Court retains a discretion to dismiss a Crown appeal even where the sentence is found to be inadequate.
  • An offender's intellectual disability can constitute a significant mitigating circumstance, particularly where expert evidence establishes that incarceration would expose that person to exploitation and harm at the hands of other inmates.
  • In assessing parity between co-offenders, the Court examined the different roles each played, the degree of assistance each provided to authorities, and the individual discounts each received, rather than treating the co-offender's sentence as a simple benchmark.
  • The Court of Criminal Appeal signalled clearly that its exercise of discretion in this case was confined to its unusual facts, and expressly warned the respondent that the outcome represented his final opportunity to remain in the community.
  • Where the Court raises the possibility of an alternative disposition during a Crown appeal, the Crown bears a practical responsibility to investigate and present adequate information about that option; failure to do so may influence the Court's exercise of discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 33
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Ellis [1986] 6 NSWLR 603 (additional leniency for disclosure of offences unknown to authorities)
- Attorney-General's Application No 1 of 2002
- R v Barton (2001) 121 A Crim R 185
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Wright (1997) 93 A Crim R 48