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Court of Criminal Appeal 26 October 2003

Regina v RUTTER

[2003] NSWCCA 306

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING PARITY RELEVANT PRINCIPLES

Citation: Regina v Rutter [2003] NSWCCA 306
Court: New South Wales Court of Criminal Appeal
Date: 26 October 2003
Judge(s): Tobias JA, Howie J, Shaw J

Background

The applicant was sentenced in the District Court after pleading guilty to a serious home invasion offence under s 113(2) of the Crimes Act 1900. His role was central to the planning and execution of the crime: he provided a firearm, drove his co-offender to the victim's premises, and remained in telephone contact during the offence. His co-offender, Tolmie, was sentenced separately, and the applicant contended that the resulting disparity in sentences was unjustifiable.

The applicant also relied on psychological evidence from a Dr Lennings, which described him as falling within the "borderline mentally retarded range," being "chronically unhappy," and being "an incredibly fragile man" suffering from depression and a somatisation disorder. The sentencing judge, McGuire DCJ, accepted some of those findings but not others, and used the accepted findings to identify special circumstances affecting the non-parole period.

The applicant sought leave to appeal his sentence to the Court of Criminal Appeal on three main grounds: insufficient weight given to his mental state, the failure to reduce the weight given to general deterrence because of that mental state, and a justifiable sense of grievance arising from the lighter sentence imposed on Tolmie.

  • Whether the sentencing judge gave sufficient weight to the applicant's mental condition as assessed by the psychologist.
  • Whether the applicant's mental state was of a kind that required the sentencing judge to reduce the weight given to general deterrence.
  • Whether the disparity between the applicant's sentence and that of his co-offender gave rise to a justifiable sense of grievance warranting appellate intervention under the parity principle.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach on any of the grounds raised.

On the mental state and general deterrence ground, Howie J confirmed that not every mental condition justifies a reduction in the weight given to general deterrence. The applicant's condition, while accepted as genuine, fell well short of the severe mental disorder or significant intellectual handicap that the authorities require before general deterrence can be substantially discounted. The sentencing judge was entitled to treat the psychological findings as they affected the non-parole period through special circumstances, without also reducing the weight of general deterrence.

On the parity ground, the Court applied the principles established in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996) 189 CLR 295. A bare disparity between co-offenders' sentences does not, by itself, enliven appellate discretion to interfere. Intervention is warranted only where the disparity cannot be explained by differences in criminality, subjective circumstances, or the proper application of sentencing principles. The Court found that any disparity between the applicant's sentence and Tolmie's was, at most, marginal and explicable by relevant differences.

Shaw J observed that the offence was objectively very serious: a nocturnal home invasion involving a firearm, organised by the applicant, who had financial arrangements with a third party connected to the plan. Although the applicant's plea of guilty was mitigating, it appeared substantially motivated by overwhelming telephone intercept evidence rather than genuine remorse. The non-parole period of three years was described as moderate in the circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A mental condition will not automatically reduce the weight given to general deterrence in sentencing. The condition must amount to a mental disorder or severe intellectual handicap, and it is only in extreme cases that general deterrence could be entirely outweighed by the offender's mental state.
  • The parity principle does not require sentences to be identical across co-offenders. Appellate intervention is only justified where the disparity cannot be accounted for by differences in culpability, subjective circumstances, or proper sentencing principle.
  • Where a co-offender's sentence may itself have been unduly lenient, that does not create a justifiable grievance entitling the appellant to a reduction in what is otherwise an appropriate sentence.
  • Sentencing courts retain a discretion to accept or reject components of psychological evidence. McGuire DCJ's partial acceptance of the psychologist's findings, using accepted findings to support special circumstances rather than to discount general deterrence, was within the legitimate exercise of that discretion.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that appellate courts should not tinker with sentences at first instance where any disparity is marginal and the sentence is otherwise appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(2)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996) 189 CLR 295
- Lovelock v The Queen (1978) 19 ALR 327
- Wright (1997) 93 A Crim R 48
- Engert (1995) 84 A Crim R 67
- R v Litteri (Unreported, NSWCCA, 18 March 1992)
- R v Mooney (Unreported, CCA (Vic), 21 June 1978)
- R v Fahda [1999] NSWCCA 267
- R v Koomson [2001] NSWCCA 176
- R v Schultz [2002] NSWCCA 462
- R v Wahabzadah [2001] NSWCCA 253
- R v Ilbay [2000] NSWCCA 251
- R v Osenkowski (1982) 30 SASR 212
- R v Cox (1996) 66 SASR 152
- Anderson (1981) 2 A Crim R 379
- Gibson (1991) 56 A Crim R 1
- Scognamilglo (1991) 56 A Crim R 81
- R v Duggett (Unreported, NSWCCA, 24 March 1997)