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Court of Criminal Appeal 1 September 2003

R v MONY

[2003] NSWCCA 245

Theft & property
CRIMINAL LAW SENTENCING OFFENDERS PARITY APPLICANT 3 MONTHS YOUNGER THAN CO IDENTICAL SENTENCES

Citation: R v Mony [2003] NSWCCA 245
Court: New South Wales Court of Criminal Appeal
Date: 1 September 2003
Judge(s): Dunford J; Greg James J

Background

The appellant and his co-offender each pleaded guilty in the District Court to ten counts of armed robbery on indictment. Both were sentenced on the same day by Goldring DCJ. Each also had additional armed robbery matters dealt with by way of Form 1 (a procedural mechanism allowing a court to take further charges into account at sentencing without recording separate convictions). The appellant had six Form 1 matters; the co-offender had nine.

The two offenders received identical overall sentences: a head sentence of nine years and six months, with a non-parole period of five years and six months. The sentencing judge found both equally culpable and noted that most of the offences were committed together as part of a joint criminal enterprise over a brief period in November 2001.

The appellant was approximately three months younger than his co-offender and had been seventeen years old when the offences occurred. The co-offender had turned eighteen on the very day the first offence was committed. The appellant sought leave to appeal on the sole basis that the identical sentences were unjust given the age difference and his fewer Form 1 matters.

  • Whether imposing identical sentences on co-offenders with different ages and a different number of Form 1 matters gave rise to an unjustifiable sense of grievance, warranting appellate intervention on parity grounds.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the imposition of identical sentences. Dunford J identified that the difference in the number of Form 1 matters was of minimal significance in circumstances where both offenders participated in the same joint criminal enterprise over a short period, committing most of the offences together. The three-month age gap was similarly described as minimal.

Dunford J also noted that the characterisation of the applicant as receiving no distinct treatment was incorrect. The sentencing judge had, pursuant to the Children (Criminal Proceedings) Act 1987 s 19, directed that the appellant serve his sentence in a juvenile detention centre until he turned twenty-one, a benefit unavailable to the co-offender, who was required to serve his entire sentence in an adult institution. This distinction represented a meaningful sentencing difference in the appellant's favour.

Greg James J agreed, adding that the sentencing judge had expressly considered the parity principles from Postiglione and made findings about each offender's culpability and prior record. His Honour observed that even had a specific submission about the different number of Form 1 offences been pressed, the sentencing court would have been entitled to reject it on the basis that the distinction was inconsequential to the overall penalty, given the joint nature of the enterprise. The differences in the charges were a matter of administrative detail within the same course of criminal conduct.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A difference in the number of Form 1 matters between co-offenders does not automatically warrant a difference in sentence, particularly where both participated equally in a joint criminal enterprise over a short period.
  • The Court of Criminal Appeal confirmed that a three-month age gap between co-offenders, without more, does not establish a basis for resentencing on parity grounds.
  • Under s 19 of the Children (Criminal Proceedings) Act 1987, directing that a young offender serve their sentence in a juvenile detention centre until age twenty-one constitutes a meaningful sentencing distinction, even where the head sentence and non-parole period are identical to those of an adult co-offender.
  • In dismissing the appeal, the Court confirmed that a "justifiable sense of grievance" requires something more than a co-offender having more charges or being slightly older; the overall picture of culpability, criminal record, and any non-custodial benefits must all be weighed.
  • A worse prior criminal record on the part of an appellant can offset factors that might otherwise support a lesser sentence relative to a co-offender.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295