Citation: Regina v Jin [2003] NSWCCA 238
Court: New South Wales Court of Criminal Appeal
Date: 20 August 2003
Judge(s): Foster AJA, Grove J, Dowd J
Background
The applicant pleaded guilty before a magistrate to two charges of robbery in company, carrying a maximum penalty of 20 years imprisonment, and was committed to the District Court for sentencing. The offences arose from an incident in which the applicant and a co-offender approached three 14-year-old boys in a park and robbed them of mobile phones and cash. Three further matters (larceny, entering enclosed lands, and self-administration of a prohibited drug) were placed before the sentencing judge on a Form 1 to be taken into account.
Sides DCJ at Campbelltown District Court sentenced the applicant to three years imprisonment with a non-parole period of 18 months. The co-offender, Bordakiawicz, received an identical head sentence of three years but with a longer non-parole period of two years, served by way of periodic detention.
The applicant sought leave to appeal on the sole ground that the disparity between his sentence and that of his co-offender gave rise to a justifiable sense of grievance. Notably, the applicant's non-parole period was actually shorter than that of his co-offender, although the co-offender served his by periodic detention rather than full-time custody.
Legal Issues
- Whether the difference in sentences between the applicant and his co-offender created an unjustifiable disparity giving rise to a legitimate grievance under parity principles
- Whether the sentencing judge erred in his approach or in any factual findings underpinning the distinction drawn between the two offenders
Decision
Grove J (with whom Foster AJA and Dowd J agreed) dismissed the appeal after finding no error in the sentencing judge's approach or findings. The sentencing judge had expressly acknowledged the parity issue and found no basis to distinguish between the two offenders' criminality or their entitlement to leniency for their guilty pleas. The judge's differentiation rested entirely on their differing subjective circumstances.
The key distinctions drawn by Sides DCJ were well supported by the evidence. The co-offender had no prior convictions, whereas the applicant had accumulated multiple convictions across several Local Courts. At the time of the offences, the applicant was subject to a current recognizance and had breached his bail conditions. A Probation and Parole Service report described him as unsuitable for further supervision, noting misconduct on community service, failure to appear, and evasive engagement. The sentencing judge found the applicant's rehabilitation prospects could not be viewed as good, while the co-offender's were described as excellent.
The Court of Criminal Appeal also noted several factors the sentencing judge had expressly considered in the applicant's favour, including his stated intention to return the stolen phone, his assistance to police in identifying the co-offender, and the four days he had spent in pre-sentence custody. None of these had been overlooked. The Court observed that the applicant had not contended that his sentence, viewed in isolation, was outside the range of a sound sentencing discretion.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- A sentencing court may impose different non-parole periods on co-offenders of equal criminality where their subjective circumstances, particularly criminal history and rehabilitation prospects, differ materially.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a finding of unjustifiable disparity requires demonstrated error in the sentencing judge's approach or findings, not merely a difference in outcome between co-offenders.
- Prior convictions, breach of bail, poor engagement with supervised orders, and unfavourable pre-sentence reports can each constitute a valid basis for distinguishing between co-offenders at sentence.
- The parity principles affirmed in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 remained the applicable framework, though the Court found neither authority required detailed restatement given the absence of any error below.
- Factors favourable to the applicant, including cooperation with police and pre-sentence custody, were considered but did not outweigh the adverse distinctions established by the evidence.
Legislation and Cases Referenced
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
Legislation: No specific legislation was cited in the judgment text.