Citation: Regina v DAETZ; Regina v WILSON [2003] NSWCCA 216
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2003
Judges: Tobias JA, James J, Hulme J
Background
Two co-offenders, Daetz and Wilson, were sentenced in the District Court following guilty pleas to a joint offence of robbery in company committed on 1 November 2001 at Chatswood. The offence involved a violent assault on a victim who was punched and kicked repeatedly while on the ground. Each offender was also sentenced for separate individual offences: Daetz for two counts of demanding money with menaces, and Wilson for aggravated robbery and common assault.
Judge Woods QC imposed a six-year sentence with a three-year non-parole period on each offender for the robbery in company. Both offenders applied for leave to appeal against their sentences, with the applications heard together.
The appeals raised distinct issues. Daetz argued his sentence failed to adequately account for extra-curial punishment he had suffered following the offence. Wilson argued his sentence was manifestly excessive and relied on a parity argument, contending his sentence should not exceed that of his co-offender.
Legal Issues
- Whether the sentencing judge gave adequate weight to extra-curial punishment suffered by Daetz as a mitigating factor
- Whether the sentence imposed on Daetz was manifestly excessive in light of that extra-curial punishment
- Whether Wilson's sentence was manifestly excessive
- Whether Wilson was entitled to a reduction in his sentence on parity grounds, given that Daetz's sentence was reduced on appeal
- Whether special circumstances justified a different ratio between the non-parole period and the total sentence
Decision
The Court allowed Daetz's appeal on the ground that the sentencing judge had not given sufficient weight to the extra-curial punishment Daetz had suffered after the offence. Extra-curial punishment refers to serious consequences suffered outside the formal criminal justice system as a direct result of offending conduct, such as severe physical injury or retribution inflicted by others. The Court found this mitigating factor warranted a meaningful reduction in Daetz's sentence, and substituted a lesser sentence accordingly.
The Court dismissed Wilson's appeal in full. It found no error in the sentencing judge's assessment of the objective seriousness of Wilson's offending or in the sentence imposed. The Court accepted that there had been conflicting accounts from witnesses about the precise extent of each offender's violence, and found it was not in a position to substitute its own factual findings on comparative culpability.
On the parity ground, the Court held that Wilson was not entitled to a reduced sentence simply because Daetz's sentence had been reduced on appeal. The reduction in Daetz's sentence was attributable to extra-curial punishment that was personal to Daetz. Because Wilson had not suffered extra-curial punishment of any comparable significance, the reduction could not flow through to him.
Orders Made
Daetz:
- Extension of time to file application for leave to appeal granted
- Leave to appeal granted
- Appeal allowed
- Original sentence quashed and a new, lesser sentence substituted
Wilson:
- Extension of time to file application for leave to appeal granted
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Extra-curial punishment is a personal mitigating factor: where a co-offender suffers significant punishment outside the formal criminal justice process as a direct consequence of their offending, that factor is particular to that offender and does not automatically benefit others sentenced for the same crime.
- A sentence reduction granted to one co-offender on appeal does not, by itself, create a parity entitlement for the other. The Court of Criminal Appeal confirmed that parity arguments must be assessed against the original sentences, not against any variation arising from a co-offender's successful appeal on personal grounds.
- Where witness accounts of a joint offence are materially inconsistent, an appellate court will be cautious about making its own findings on comparative culpability, particularly when the sentencing judge was best placed to assess the evidence.
- In dismissing Wilson's appeal, the Court confirmed that a sentence at or near a particular level for a serious offence of robbery in company is not manifestly excessive merely because it matches a co-offender's sentence, if the objective criminality of each offender is broadly comparable.
- Sufficient evidence existed to support the sentencing judge's factual findings about the nature and extent of each offender's violence, even in the face of conflicting accounts from the victim's friend and the offender's own record of interview.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 95, 97, 99
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Allpass (1993) 72 A Crim R 561
- R v Barci & Asling (1994) 76 A Crim R 103
- R v Burchell (1987) 34 A Crim R 148
- R v Clampitt-Wotton [2002] NSWCCA 383
- R v Coleman (1990) 47 A Crim R 306
- R v Cooney (Qld Court of Appeal, unreported, 6 March 1998)
- R v Fletcher (1980) 4 Crim LJ 244
- R v Genz [1999] NSWCCA 285
- R v Gooley (1996) 87 A Crim R 227
- R v Haddara (1997) 95 A Crim R 108
- R v Henry (1999) 46 NSWLR 346
- R v Jadurin (1982) 7 A Crim R 182
- R v Minor (1992) 59 A Crim R 227
- R v Noble; R v Verheyden (1994) 73 A Crim R 379
- R v Wright (No.2) [1968] VR 174
- Ryan v The Queen (2001) 206 CLR 267