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Court of Criminal Appeal 9 February 2004

R v BOWTELL

[2004] NSWCCA 17

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences

Citation: R v Bowtell [2004] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 9 February 2004
Judges: Hulme J (primary judgment), Sully J, James J (both agreeing)

Background

The applicant and a co-offender escaped from Grafton Gaol in early 2001 and committed a series of serious offences together. These included stealing a motor vehicle, detaining a person for advantage with injury, two counts of aggravated robbery, two counts of sexual assault accompanied by malicious infliction of actual bodily harm, and escaping lawful custody. The victim of the sexual assaults was approached at a beach, assaulted, gagged, tied up, and placed in her own vehicle.

Both offenders were sentenced separately in the District Court by Bellear DCJ. Anderson was sentenced first, and the Crown successfully appealed aspects of Anderson's sentences before the applicant came to be sentenced. The applicant's total effective sentence came to nineteen years and nine months, compared to fourteen years for Anderson.

The applicant sought leave to appeal his sentences, arguing that the disparity between the two sentences was unjustifiable and gave rise to a grievance recognised in law.

  • Whether the sentencing judge erred by failing to apply the principles of parity and proportionality, resulting in an unjustifiable disparity between the applicant's sentences and those imposed on his co-offender Anderson
  • Whether a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court accepted that some differences in sentence between the two offenders were justified. Anderson had pleaded guilty to all charges at the Local Court at an early stage and received a 25 per cent discount for counts 2, 3 and 4. The applicant delayed entering pleas, at one point sought to withdraw guilty pleas he had eventually entered, and ultimately received only approximately 12.5 per cent. The Court found no error in that differential.

However, the Court identified two aspects where the disparity became inappropriate. First, the commencement date of the applicant's sentence for count 5 was placed two years after the commencement of his sentences for counts 1 to 4, whereas Anderson's equivalent gap was only one year. Hulme J considered that doubling the gap placed undue weight on Anderson's earlier pleas, given that the sentences for counts 2 to 4 were only about 10 per cent longer for the applicant than for Anderson.

Second, and more significantly, the sentencing judge gave no apparent consideration to the principle of totality, which requires a court to ensure that the overall sentence is not crushing when viewed in its entirety, including prior sentences already being served. The applicant had been serving a longer prior sentence than Anderson at the time of the escape, meaning totality had a greater role to play in his case. Bellear DCJ did not address this at all.

Taking all relevant factors together, including the lesser discount, the greater need for totality, and Anderson's benefit of a double jeopardy allowance (arising from the Crown appeal against Anderson's sentences), the Court concluded that justice required the applicant's total sentence to match Anderson's total of fourteen years.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed as to sentences on counts 1 to 4
  • Appeal allowed as to sentences on counts 5, 6 and 7
  • Sentences on counts 5, 6 and 7 quashed and replaced as follows:
  • Count 5 (sexual assault with actual bodily harm): fixed term of six years, 25 September 2004 to 24 September 2010
  • Count 6 (sexual assault with actual bodily harm): eleven years commencing 25 September 2006, including a non-parole period of six years expiring 24 September 2012
  • Count 7 (escaping lawful custody): fixed term of two years, 25 September 2012 to 24 September 2014

Key Takeaways

  • The parity principle, established in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295, requires that co-offenders not receive sentences so different as to give rise to a justifiable sense of grievance, even where some differences in sentence are warranted by differing circumstances.
  • Differential discount rates for guilty pleas are permissible where one offender pleaded guilty materially earlier than the other; the Court of Criminal Appeal confirmed that a defendant who delays pleading guilty, and at one point attempts to reverse entered pleas, is not entitled to the same discount as a co-offender who pleaded at the earliest opportunity.
  • The principle of totality requires a sentencing court to consider the overall length of imprisonment, including any sentences already being served. Failure to address totality at all was identified as a sentencing error in this case.
  • Where a Crown appeal has been allowed against a co-offender's sentence, that co-offender may have a double jeopardy allowance built into their revised sentence, and that factor is relevant when assessing parity with the other offender.
  • In recalibrating sentences to achieve parity, the Court of Criminal Appeal did not equalise every individual count but instead restructured the overall sentence so that the total effective term matched that of the co-offender.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)

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