Citation: Regina v Makhoul [2004] NSWCCA 275
Court: New South Wales Court of Criminal Appeal
Date: 10 August 2004
Judge(s): James J; Adams J; Bell J
Background
The appellant was convicted by a jury of armed robbery while carrying a knife, following an incident at a liquor store in 1999 in which he confronted the owner, prodded him with the knife, and demanded money from the till. He was separately sentenced for an older receiving offence to which he had pleaded guilty. The District Court imposed a five-year term with a two-and-a-half year non-parole period for the armed robbery, partly cumulative on the ten-month receiving sentence.
The appellant's co-offender had been tried and sentenced separately, receiving a three-year term with a one-year non-parole period. The appellant represented himself in the appeal, raising four grounds challenging the sentence imposed by Judge Hock.
Legal Issues
- Whether the sentencing judge erred by failing to give sufficient weight to the parity principle, given that the co-offender received a lesser sentence for what was said to be equivalent participation
- Whether the delay in completing the prosecution warranted a greater reduction in sentence than the sentencing judge allowed
- Whether the sentencing judge incorrectly applied the guideline in R v Henry (1999) 46 NSWLR 346 by placing the offence in the wrong category
- Whether new evidence of the appellant's mother's ill health and its effect on the care of his son should be admitted and given material weight on appeal
Decision
Parity: The Court acknowledged the general principle that co-offenders who participated equally should receive equal sentences, but found that there were real and relevant differences between the appellant and his co-offender. The co-offender had been sentenced by a different judge, had no comparable criminal history, had pleaded guilty, and had demonstrated significant subjective circumstances. The appellant, by contrast, was convicted after trial, was on bail at the time of the offence, and had a prior history. The Court found no justified sense of grievance arising from the disparity.
Delay: The Court accepted that delay in prosecution can warrant a reduction in sentence, but noted that much of the delay here was attributable to the appellant's own conduct in travelling to Lebanon for approximately two years while on bail. In those circumstances, the sentencing judge's limited allowance for delay was not shown to be in error.
Application of R v Henry guideline: The Court found the sentencing judge had correctly identified the offence as falling broadly within the common class of armed robbery cases described in R v Henry, while also properly recognising features that took it above that category, including the absence of a guilty plea, the appellant's age and criminal history, the fact that the offence was committed in company, and that the appellant was on bail at the time.
Fresh evidence of family hardship: The appellant sought to rely on evidence that his mother was in ill health and unable to care for his son, but this material had not been placed before the sentencing judge. The Court found the tests for admission of fresh or new evidence on appeal were not satisfied on the material provided. Even if admitted, the evidence could only carry material weight if it demonstrated truly exceptional hardship to the appellant's family, and the Court found the evidence fell well short of that standard.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A sentencing disparity between co-offenders does not automatically give rise to a justified sense of grievance. Where real differences exist in criminal history, plea, subjective circumstances, and the circumstances of commission, different sentences may be appropriate.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that comparisons between co-offenders require careful attention to the full range of individual circumstances, not merely equality of physical participation in the offence.
- Under the principles governing fresh evidence on sentence appeals, evidence not raised before the sentencing judge may only be admitted if it meets established tests; unsupported or meagre material will not suffice.
- Family hardship arising from an offender's imprisonment can form part of the "general mix" of subjective circumstances on sentence, but can only carry material weight where the hardship to family members is shown to be quite exceptional.
- Delay in prosecution may warrant a reduction in sentence, but where the delay is substantially caused by the offender's own conduct, the sentencing court's limited allowance for that delay is unlikely to be disturbed on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act (NSW), s 44(2) (special circumstances)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)
- GAS v The Queen [2004] HCA 22
- R v Fordham (1997) 98 A Crim R 359 (fresh and new evidence on sentence appeal)
- R v Girard [2004] NSWCCA 170 (family hardship as part of subjective circumstances)
- R v Postiglione (1997) 189 CLR 295 (parity in sentencing)