Citation: Regina v Warren [2003] NSWCCA 366
Court: NSW Court of Criminal Appeal
Date: 10 December 2003
Judge(s): Hidden J; Smart AJ
Background
The applicant was convicted after trial in the District Court of aggravated break, enter and steal, with four further offences taken into account on a Form 1. The offence involved breaking into a house in Ashfield on Christmas afternoon 2001 and stealing electronic equipment. The specific aggravation was that the applicant acted in company with a co-offender, Samir Elsamad.
The District Court sentenced the applicant to 4 years and 6 months imprisonment with a non-parole period of 3 years. The applicant was 38 at the time of the offence, had an extensive criminal record dating to 1977, and a long history of heroin use. His co-offender, Elsamad, had pleaded guilty and was dealt with by the Drug Court, which imposed an initial sentence of 2 years and 6 months imprisonment, suspended during his Drug Court program.
The applicant sought leave to appeal against the severity of his sentence, arguing that a disparity of two full years between his sentence and that of his co-offender produced an outcome that lacked due proportion.
Legal Issues
- Whether the sentences imposed on the applicant and his co-offender lacked due proportion, giving the applicant a justifiable sense of grievance
- Whether the sentence imposed by the Drug Court on a co-offender is a relevant consideration when assessing proportionality in sentencing by the District Court
- What the appropriate sentence was, taking into account the applicant's circumstances and the need for special circumstances
Decision
The Court of Criminal Appeal found that the two-year difference between the sentences was too great and resulted in a lack of due proportion. Although strict parity did not apply, given that Elsamad had pleaded guilty, faced additional concurrent sentences, and was a younger man with a somewhat shorter criminal record, those differences did not justify a gap of this magnitude.
The Court acknowledged that the applicant's criminal record was worse than Elsamad's but noted both records were seriously adverse and that both men had previously committed break, enter and steal offences. The Court confirmed that what occurs in the Drug Court when sentencing a co-offender must be taken into consideration by the District Court, with the weight given to that sentence depending on all the circumstances of the case.
The Court accepted that special circumstances existed, given the applicant's need for an extended period of supervision on release. It also noted his progress in custody, including remaining drug-free, completing relevant programmes, and maintaining contact with his children through the support of his sister's family.
The Court reduced the sentence to the lowest permissible term of 3 years and 9 months, with a non-parole period of 2 years and 3 months and a parole period of 18 months. The Court expressly declined to reduce the sentence to the same level as that of Elsamad, noting the applicant's more serious history.
Orders Made
- Appeal allowed; original sentence quashed
- In lieu, the applicant sentenced to imprisonment for 3 years and 9 months commencing 2 March 2002, with a non-parole period of 2 years and 3 months expiring 1 June 2004
Key Takeaways
- A two-year difference between sentences imposed on co-offenders for the same offence was sufficient to constitute a lack of due proportion under the principle confirmed in Postiglione v The Queen (1997) 189 CLR 295.
- Sentences imposed by the Drug Court on a co-offender are a relevant consideration when the District Court (or a reviewing court) assesses whether the overall sentencing outcome is proportionate, though the weight given will depend on the circumstances.
- Differences between co-offenders, including a guilty plea, age, and criminal record, are legitimate factors that may justify sentencing disparity, but they do not automatically excuse any gap of any size.
- Where an applicant has a justifiable sense of grievance, the appropriate remedy is not necessarily to reduce the sentence to the co-offender's level; the court retains discretion to impose the lowest permissible sentence that properly reflects the applicant's individual culpability.
- Progress in custody, including participation in drug rehabilitation programmes and maintenance of family relationships, was treated as relevant to determining the sentence on resentencing.
Legislation and Cases Referenced
Legislation
- Drug Court Act 1998 (NSW), ss 7(2) and 7(3)
Cases
- Postiglione v The Queen (1997) 189 CLR 295
- R v McCrea (2001) 114 A Crim R 226