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Court of Criminal Appeal 1 November 2004

R v Teoka & Ors

[2004] NSWCCA 373

Assault & violenceTheft & property

Citation: R v Teoka & Ors [2004] NSWCCA 373
Court: NSW Court of Criminal Appeal
Date: 1 November 2004
Judges: Grove J, Buddin J, Hoeben J

Background

Three co-offenders were convicted of aggravated robbery under s 96 of the Crimes Act 1900 following a violent attack on a pedestrian at Caringbah in July 2002. The victim was punched and kicked repeatedly by all three offenders, losing consciousness, and sustained permanent injuries including a fractured skull, sunken eye socket, double vision, and lasting psychological harm. One offender initiated the attack; another removed the wallet and later divided its contents.

All three applicants pleaded guilty, though at different stages of the proceedings. The District Court sentenced each applicant to different terms: Teoka to 10 years (non-parole period of 6 years), Lloyd to 10 years and 9 months (non-parole period of 6 years and 9 months), and ADM to 11 years (non-parole period of 7 years). Each applicant sought leave to appeal, principally on the ground of sentencing parity.

  • Whether the sentences imposed on Lloyd and ADM were manifestly excessive when compared with the sentence imposed on Teoka, given that all three applicants were convicted of the same offence arising from the same facts.
  • Whether the sentencing judge gave adequate weight to the age of the offenders, particularly ADM, who was a juvenile at the time of the offence.
  • Whether the respective degrees of culpability among the co-offenders, and differences in remorse, justified the sentencing disparities that resulted.

Decision

Hoeben J, with whom Grove J and Buddin J agreed, examined the relative culpability of each offender and the circumstances of their pleas. Teoka had initiated the attack and had prior convictions for assault, but demonstrated genuine remorse. Lloyd delayed his plea until the third day of trial, showed no remorse, and had a significant criminal history. ADM, the youngest offender, had removed the wallet, showed no remorse on his Honour's findings, but was a juvenile at the time of the offence and had no prior criminal record.

On the parity ground, the Court found that Lloyd would have a justifiable sense of grievance at receiving a longer sentence than Teoka. Although Lloyd's lack of remorse and later plea were aggravating factors, they did not, in the Court's view, justify the additional 9 months. Lloyd's sentence was reduced to match Teoka's.

Regarding ADM, Hoeben J acknowledged that youth and lack of prior offending were factors warranting leniency, and that ADM's age provided some explanation for conduct that would otherwise be incomprehensible. However, his Honour concluded that ADM's youth did not entitle him to a lesser sentence than either co-offender; it entitled him, at most, to the same sentence. The 11-year term imposed at first instance was quashed and replaced with the same 10-year total term imposed on Teoka.

Orders Made

R v Teoka
- Leave to appeal granted; appeal allowed.
- Sentence confirmed: 10 years imprisonment with a 6-year non-parole period, commencing 6 February 2003; non-parole period to expire 5 February 2009.

R v Lloyd
- Leave to appeal granted; appeal allowed.
- Original sentence quashed; resentenced to 10 years imprisonment with a 6-year non-parole period, commencing 4 December 2002; non-parole period to expire 3 December 2008.

R v ADM
- Leave to appeal granted; appeal allowed.
- Original sentence quashed; resentenced to 10 years imprisonment with a 6-year non-parole period, commencing 7 August 2002; non-parole period to expire 6 August 2008.

Key Takeaways

  • Parity of sentencing requires that co-offenders convicted of the same offence arising from the same facts should not receive materially different sentences unless the differences in their individual circumstances justify the disparity.
  • A lack of remorse and a late plea of guilty can constitute legitimate grounds for distinguishing between co-offenders at sentence, but the Court of Criminal Appeal found those factors did not justify a nine-month differential between Lloyd and Teoka.
  • Juvenile age at the time of an offence is a mitigating consideration, particularly when combined with the absence of prior offending; however, the Court held that those factors entitled ADM to no more than parity with his co-offenders, not to a lesser sentence.
  • Where an offender who initiated the violence demonstrated genuine remorse and the others did not, remorse was treated as a relevant distinguishing factor, even though it did not ultimately result in a more favourable outcome for those offenders.
  • In dismissing the disparity with Teoka's sentence, the Court confirmed that the appropriate remedy in parity appeals is to bring the higher sentence into line with the lower, rather than re-evaluating all sentences afresh.

Legislation and Cases Referenced

Legislation
- Children's (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 35(2), 96
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Voss [2003] NSWCCA 182
- R v Weldon & Carberry (2002) 136 ACrim R 55