AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 8 December 2004

Regina v Lagi

[2004] NSWCCA 443

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW: CONVICTION APPEAL WHETHER AVAILABLE ON EVIDENCE INCONSISTENT VERDICTS SENTENCE APPEAL WHETHER PARITY PRINCIPLE OBSERVED.

Citation: Regina v Lagi [2004] NSWCCA 443
Court: NSW Court of Criminal Appeal
Date: 8 December 2004
Judge(s): Mason P, Barr J, Hoeben J

Background

The appellant was one of several occupants of a stolen vehicle pursued by police in Sydney's eastern suburbs on 27 March 2002. When police activated lights and sirens, a co-offender named Penisini exited the vehicle and fired five shots at a pursuing unmarked police car, fatally wounding Senior Constable McEnallay. The appellant and a second co-offender, Taufahema, fled on foot. Each was armed with a revolver; the appellant dropped his weapon in a nearby garden and hid from police for several hours before returning home.

All three men were later charged. Penisini had already pleaded guilty to murder before the trial. The appellant and Taufahema were jointly tried before Wood CJ at Common Law and a jury on a charge of murder, with an alternative count under s 33B(2) of the Crimes Act 1900, which covers using an offensive weapon in company with intent to prevent lawful apprehension. The maximum penalty for the alternative count is 15 years' imprisonment.

The jury convicted Taufahema of murder but convicted the appellant only on the alternative count. The appellant challenged both that conviction and the severity of his sentence.

  • Whether a conviction on the alternative count under s 33B(2) could be sustained on the evidence, given that the jury acquitted the appellant of murder but convicted his co-offender Taufahema of the same charge on the same facts
  • Whether the verdicts against the appellant and Taufahema were so inconsistent as to render the appellant's conviction unsafe
  • Whether the parity principle in sentencing was offended by the disparity between the appellant's sentence and that imposed on Taufahema

Decision

On the conviction appeal, the appellant argued that there was no evidentiary basis for distinguishing his position from Taufahema's, and that the different verdicts were therefore logically inconsistent and could not both stand. Hoeben J (with whom Mason P and Barr J agreed) rejected this argument. The court held that the verdicts were not necessarily inconsistent; the jury was entitled to take a different view of each accused's state of mind and degree of participation, and it was open on the evidence to convict the appellant of the lesser offence while convicting Taufahema of murder.

On the sentence appeal, the appellant contended that his sentence was disproportionately harsh compared to the sentence Taufahema received for the same offence under s 33B(2), raising the parity principle. The court found this comparison was not straightforward. Taufahema's sentencing involved four offences, with accumulated and concurrent terms reflecting a totality calculation that simply did not apply to the appellant. The circumstances of each offender's conduct were also materially different.

The court applied the test from Postiglione v The Queen, which requires equal treatment of like cases but permits different sentences where there are relevant differences in culpability or circumstances. Because identifiable factors justified the different sentencing outcomes, no justifiable sense of grievance arose and no sentencing error was disclosed. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against severity of sentence granted, but appeal dismissed

Key Takeaways

  • Inconsistent verdicts between co-offenders on related counts do not automatically render a conviction unsafe; a jury is entitled to assess each accused separately and return different verdicts where the evidence supports it.
  • The Court of Criminal Appeal confirmed that the parity principle requires equal treatment of like cases, but permits different sentences where there are relevant differences in culpability, antecedents, or the overall sentencing scheme applied to each offender.
  • Where one co-offender's sentence forms part of a complex scheme involving accumulation, concurrency, and totality adjustments across multiple offences, a bare numerical comparison with another offender's sentence can be misleading and will not, without more, establish a parity error.
  • A conviction under s 33B(2) of the Crimes Act 1900 (using an offensive weapon in company with intent to prevent lawful apprehension) does not require the jury to find that the offender contemplated death or grievous bodily harm as a consequence, distinguishing it from a murder verdict on joint enterprise or felony-murder grounds.
  • In dismissing both appeals, the Court of Criminal Appeal affirmed that the Postiglione formulation remains the governing statement of the parity principle: disparity that is explained by significant and objective differences between co-offenders does not produce an unjustifiable sense of grievance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 33B(2)
- Firearms Act 1996 (NSW)

Cases
- Mackenzie v The Queen (1996) 190 CLR 348
- R v Thompson & Houlton (2000) 40 NSWLR 383
- Postiglione v The Queen (1996) 189 CLR 295
- R v Cox (1996) 66 SASR 152