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Court of Criminal Appeal 28 May 2003

Regina v JCM

[2003] NSWCCA 151

Assault & violenceTheft & propertyFirearms & weapons
ATTEMPTED ARMED ROBBERY PARITY NEED TO LOOK AT WHAT EACH OF TWO CO OFFENDERS DID AND CULPABILITY OF EACH

Citation: Regina v JCM [2003] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 28 May 2003
Judge(s): James J; Smart AJ

Background

A juvenile appellant, JCM, was convicted by jury of assault with intent to rob whilst armed with a dangerous weapon, specifically a shortened rifle, following an incident at Fairfield railway station in May 2001. The offence involved a co-offender, TVC, who confronted the victim on a railway bridge, producing a knife and a loaded firearm in an attempt to steal his mobile phone. JCM, standing nearby, approached the victim during the robbery and made a threatening statement, the precise wording of which was disputed at trial.

The sentencing judge in the District Court imposed a four-year term of imprisonment with a non-parole period of twenty months. JCM appealed to the Court of Criminal Appeal, arguing the sentence was both manifestly excessive and disproportionate relative to the sentence received by TVC.

  • Whether the original sentence was manifestly excessive given JCM's role and level of culpability in the offence.
  • Whether the principle of parity required the sentencing judge to more carefully distinguish between the individual roles and culpabilities of JCM and TVC before imposing sentence.
  • Whether the sentencing judge incorrectly assessed the facts and misapplied parity principles when determining JCM's sentence relative to TVC's.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in her assessment of the respective culpabilities of JCM and TVC. TVC was the principal offender: he armed himself with both a knife and a loaded shortened firearm, physically confronted the victim, and initiated the attempted robbery. JCM's role, while serious, was secondary. He had initially declined to participate and his involvement was shaped, at least in part, by peer pressure and a stated concern that TVC might harm the victim.

The Court accepted that the jury's guilty verdict was consistent with the victim's version of events, and that JCM did make a threatening statement reinforcing the robbery. However, the proper application of parity principles required a meaningful comparison of what each co-offender actually did and their relative moral culpability, not merely a comparison of the sentences imposed.

Both youths were of similar age, had no prior criminal records, came from supportive families, and had good prospects for rehabilitation. JCM had, by the time of the appeal, made notable progress in his studies while in custody. Taking all of these matters into account, the Court held that a three-year term of imprisonment was appropriate, with the sentence backdated and the non-parole period adjusted accordingly.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; original sentence quashed.
  • In substitution, JCM sentenced to imprisonment for three years commencing 8 April 2002, with a non-parole period of twenty months expiring 7 December 2003, on which date JCM was to be released on parole.

Key Takeaways

  • Parity in sentencing co-offenders requires a court to examine what each offender individually did and to assess their respective culpability, rather than treating shared charges as necessarily warranting equivalent sentences.
  • Where one co-offender is the clear principal, carrying weapons and directing the offence, a secondary participant's lesser role must be given meaningful weight at sentencing, even where both are convicted of the same charge.
  • The Court of Criminal Appeal confirmed that a finding of guilt based on the victim's evidence does not foreclose separate consideration of the secondary offender's particular circumstances, motivations, and degree of participation.
  • Favourable post-sentencing conduct, including educational achievement in custody, is a relevant consideration on appeal when the court is conducting a re-sentencing exercise.
  • In dismissing the adequacy of the original sentence, the Court reduced the effective non-parole period by four months through a combination of backdating the sentence commencement and reducing the non-parole period itself.

Legislation and Cases Referenced

Cases:
- Henry (1999) 46 NSWLR 346
- Lowe v The Queen (1984) 154 CLR (citation incomplete in judgment)

Legislation: None cited.