Citation: Regina v Allison [2004] NSWCCA 11
Court: New South Wales Court of Criminal Appeal
Date: 6 February 2004
Judge(s): Dunford J, Greg James J
Background
The appellant, a woman who appeared in person, sought leave to appeal against sentences imposed by Morgan DCJ in the Penrith District Court on 14 February 2003. She had been convicted after trial of breaking and entering a warehouse at Huntingwood with intent to steal, and had pleaded guilty to a separate offence of assault with intent to rob while in company. Two further offences were taken into account on a Form 1: detaining a person for advantage and being carried in a conveyance taken without the owner's consent.
The break-and-enter offence involved the appellant acting as a lookout while a male co-offender ransacked an industrial premises. Police caught the appellant after a road pursuit during which the co-offender rammed a police vehicle. The assault with intent to rob was a more serious matter, involving the appellant, her son, and her daughter accosting a victim in a parked car, threatening him with a knife, forcing him to travel toward an ATM to withdraw money, and ultimately stealing his wallet and mobile phone.
The appellant argued on appeal that the sentences were excessive, that insufficient regard had been given to concurrency and parity with her co-offenders, and that the commencement date of one of her sentences had been incorrectly calculated.
Legal Issues
- Whether the sentences imposed were manifestly excessive
- Whether the sentencing judge gave adequate weight to concurrency, given that the two groups of offences were unrelated
- Whether the principle of parity required lower sentences when compared with those received by the appellant's co-offenders (her son and daughter)
- Whether the commencement date of the break-and-enter sentence should have been backdated to an earlier date
Decision
The Court granted leave to appeal because the matter had been fully argued, but dismissed the appeal. Greg James J found no error in any aspect of the sentences imposed by the District Court judge.
On the question of parity, the Court examined the sentences received by the appellant's daughter and son. The daughter had pleaded guilty to multiple serious offences, including charges of malicious wounding and a further assault with intent to rob while armed, and her overall criminality was plainly greater. The comparison therefore did not support any reduction in the appellant's sentence.
In relation to the assault with intent to rob while in company, the Court observed that the offence was very serious, pre-planned, involved the deliberate terrorising of a victim using a weapon, and was committed by multiple offenders acting together. Greg James J expressed the view that a lesser sentence could not have been justified, and that the sentencing judge may well have treated the appellant leniently.
On the commencement date of the break-and-enter sentence, the Court noted that both the Crown and the appellant's counsel at the sentencing hearing had agreed that 8 November 2001 was the correct commencement date. The Court declined to revisit that agreed position on appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an agreed commencement date for a sentence, reached by both parties before the sentencing court, will not ordinarily be disturbed on appeal.
- A parity argument will not succeed where the co-offenders relied upon were sentenced for a substantially greater range of offending than the appellant.
- Where an offence of assault with intent to rob is pre-planned, involves the use of a weapon, and is committed in company, the Court of Criminal Appeal signalled that a substantial sentence is appropriate and may even be considered lenient.
- No question of principle arose in this decision; the Court's analysis was confined to the particular facts and the specific grounds raised by the appellant.
- Leave to appeal against sentence may be granted to permit a full hearing even where the court ultimately finds no error in the sentences under review.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob while in company, maximum 20 years)
- Crimes Act 1900 (NSW), s 113 (break and enter with intent to steal)
- Crimes Act 1900 (NSW), s 90A (detain for advantage, maximum 14 years)
- Crimes Act 1900 (NSW), s 154A(b) (being carried in a conveyance taken without consent, maximum 5 years)
Cases cited: None recorded in the judgment.