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Court of Criminal Appeal 5 October 2004

Regina v PITT

[2004] NSWCCA 454

Theft & property
CRIMINAL LAW: APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL OFFENDER PARITY IN SENTENCING ABSENCE OF FORM 1 MATTERS

Citation: Regina v Pitt [2004] NSWCCA 454
Court: NSW Court of Criminal Appeal
Date: 5 October 2004
Judge(s): McClellan AJA, Grove J, James J

Background

The appellant had pleaded guilty in the District Court to one count of break, enter and steal under s 112(1) of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment. She and her partner had entered residential premises and stolen $14,230 in cash, along with beer and bacon. The pair were quickly identified after an acquaintance reported suspicious behaviour to police, and most of the money was recovered from a coat worn by the appellant.

Bell DCJ sentenced the appellant to 18 months imprisonment with a non-parole period of nine months. This was the same sentence that had been imposed on the co-offender by a different judge approximately a year earlier.

The appellant challenged the sentence on the ground of parity. She argued that, because her co-offender had been sentenced with five additional matters taken into account on a Form 1 and had a more serious criminal record, imposing an identical sentence on her was unjustifiably harsh by comparison.

  • Whether the identical sentences imposed on the appellant and her co-offender gave rise to an unjustifiable disparity warranting appellate intervention under the parity principle
  • Whether Bell DCJ erred in finding that the appellant's greater degree of active participation and dominant role in the offence offset the mitigating factors that benefited the co-offender, including his limited intellectual capacity and the Form 1 matters taken into account at his sentence

Decision

Bell DCJ had carefully compared the two sentences. His Honour acknowledged that the co-offender had a more extensive criminal record and had additional offences taken into account on a Form 1. However, his Honour also found that the co-offender was borderline mentally disabled and that this had attracted leniency at his sentencing.

Bell DCJ concluded that the appellant was the dominant party in the relationship and an active participant in the offence. His Honour treated this greater degree of culpability as effectively neutralising the mitigating factors that had benefited the co-offender, producing what he described as a "balancing exercise" resulting in equal responsibility for both offenders.

The Court of Criminal Appeal was not persuaded that the sentencing approach involved any error. Applying the principles in Lowe v The Queen (1984) 154 CLR 606, the Court confirmed that appellate intervention is only warranted where disparity is so manifest that it engenders a justifiable sense of grievance or where the sentence cannot stand without it appearing that justice was not done. No such conclusion was available on the facts here.

The Court also noted the constraint imposed by s 6(3) of the Criminal Appeal Act 1912, which requires the Court to form a positive opinion that some other sentence was warranted in law and should have been passed before it can intervene. That threshold was not met.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identical sentences imposed on co-offenders are not inherently wrong; equal outcomes can be justified where different mitigating and aggravating factors applicable to each offender balance each other out.
  • A co-offender's limited intellectual capacity is a legitimate mitigating factor at sentencing, but its weight can be offset by the other offender's greater degree of active participation or dominant role in the offence.
  • Under Lowe v The Queen (1984) 154 CLR 606, appellate intervention on parity grounds requires that the disparity be manifest enough to engender a justifiable sense of grievance, or that the sentence cannot stand without appearing to deny justice.
  • The absence of Form 1 matters and a less extensive criminal record do not automatically entitle an offender to a lighter sentence than a co-offender, particularly where other factors point to greater culpability.
  • Section 6(3) of the Criminal Appeal Act 1912 imposes a positive threshold: the Court of Criminal Appeal must be satisfied that a different sentence was both warranted in law and should have been passed before it can substitute a new sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 112(1) (break, enter and steal), s 112(2) (aggravated), s 117 (larceny), s 188(1) (disposing of stolen property), s 189 (receiving stolen property)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 32(1) (Form 1 procedure)
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- R v Simpson (2001) 53 NSWLR 704
- R v Ponfield (1999) 48 NSWLR 327
- R v Wright (1997) 93 A Crim R 48
- R v Leonard [2000] NSWCCA 28
- R v Paul Joseph Anderson, NSWCCA, 25 March 1993, unreported