Citation: Regina v S Y & Anor [2003] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 15 October 2003
Judge(s): Ipp JA, Whealy J, Howie J
Background
Two Crown appeals arose from sentences imposed by Sides DCJ in the District Court at Campbelltown on 23 May 2003. Both respondents had pleaded guilty to armed robbery and assault charges relating to the robbery of a sports club at Wetherill Park in the early hours of 6 August 2001. The robbery involved four participants, replica pistols, an iron bar, and the theft of approximately $55,127. Staff members were subjected to serious violence, including kicks, threats at gunpoint, and being thrown to the floor.
The respondent S Y received a sentence of 3.5 years imprisonment with a non-parole period of 2 years and 3 months for the principal armed robbery charge. His co-accused K S received 3 years imprisonment with a non-parole period of 2 years. The Crown challenged both sentences as manifestly inadequate.
A third co-offender, D V, who was the inside contact at the club, had previously received a sentence that did not require full-time imprisonment. That sentence had not been appealed by the Crown. A fourth co-offender was awaiting trial at the time of these proceedings.
Legal Issues
- Whether the sentences imposed on S Y and K S were manifestly inadequate for the offence of armed robbery under s 97(1) of the Crimes Act 1900
- Whether the sentencing judge had erred by giving undue weight to drug addiction and self-medication as mitigating factors
- Whether parity with the sentence imposed on the co-offender D V constrained the sentences available for S Y and K S
- Whether the Crown's failure to appeal D V's sentence operated as a discretionary bar to the Crown appeals against S Y and K S
Decision
The Court dismissed the Crown appeal against S Y. The Court found that, while the sentence was at the lower end of the range, it could not be demonstrated as manifestly inadequate when the full picture of his subjective circumstances was considered, including his guilty plea and the applicable discount.
The Crown appeal against K S was allowed. The Court found that the sentencing judge had fallen into error by placing excessive weight on K S's drug addiction as a mitigating factor and by treating the manifestly lenient sentence imposed on D V as a relevant benchmark for K S's sentence. The Court held that parity principles do not require a court to replicate an erroneous sentence, and that the failure to appeal D V's sentence did not, in the circumstances of this case, require the appeal against K S to be dismissed on discretionary grounds.
Howie J, in a separate judgment, emphasised that D V's sentence had little or no relevance to the task of sentencing the respondents. His Honour reasoned that the errors in the original sentencing of K S were sufficiently egregious that allowing the sentence to stand would constitute an affront to the proper administration of criminal justice.
Orders Made
- Crown appeal against S Y: dismissed
- Crown appeal against K S: allowed
- Sentence of K S for armed robbery (imposed 23 May 2003) quashed and replaced with a sentence of 5 years imprisonment with a non-parole period of 3 years, both periods commencing 30 October 2001, with the non-parole period expiring 29 October 2004
Key Takeaways
- A sentence imposed on a co-offender that was not appealed does not automatically operate as a benchmark for sentencing other offenders involved in the same crime, particularly where that sentence was itself arguably erroneous.
- The Court of Criminal Appeal confirmed that parity principles do not compel the imposition of a further erroneous sentence simply to achieve consistency with an earlier, unappealed sentence.
- Where a sentencing judge accords excessive weight to a respondent's drug addiction as a mitigating factor, that may constitute a sentencing error warranting appellate intervention.
- The Crown's failure to appeal a co-offender's sentence is a relevant discretionary consideration in a subsequent Crown appeal, but it does not necessarily require dismissal of that appeal, especially where the errors in the challenged sentence are sufficiently serious.
- Sufficient grounds existed to distinguish the positions of D V (the inside contact who later cooperated with police) and the respondents, such that parity between their sentences was not an appropriate objective.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum penalty 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Dib [2003] NSWCCA 117
- R v Diamond (NSWCCA, unreported, 18 February 1993)
- R v Isumander & Anor [2002] NSWCCA 447
- Henry & Ors (1999) 46 NSWLR 346
- Fernando (2002) NSWCCA 28
- R v Engert
- R v McIvor [2002] NSWCCA 490
- R v Hernando [2002] NSWCCA 489