Citation: Donny Minh Tran v R [2004] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 5 February 2004
Judge(s): James J, Buddin J
Background
The applicant, a man aged just under 20 at the time of the offences, pleaded guilty in the District Court to two counts of aggravated robbery (robbery with corporal violence and attempted robbery with corporal violence) under s 95 of the Crimes Act 1900. Two further offences of robbery in company and attempted robbery in company were taken into account on a Form 1. All four offences were committed against teenage victims in August 2002.
Three of the offences were committed on the same afternoon in company with three juvenile co-offenders. The victims, all aged 14 or 15, were assaulted, kicked while on the ground, and robbed of cash, wallets, and mobile phones. The fourth offence, committed alone ten days later, involved the applicant threatening a bottle at one of the earlier victims, kicking him, and attempting to steal his necklace. The applicant was arrested at the scene and made full admissions to police.
The District Court sentenced the applicant to a total effective sentence of 6 years with a non-parole period of 4 years. The applicant sought leave to appeal on the grounds that the sentences were manifestly excessive and that there was an unjustifiable disparity between his sentence and those imposed on his juvenile co-offenders.
Legal Issues
- Whether the total sentence of 6 years with a 4-year non-parole period was manifestly excessive having regard to the applicant's subjective circumstances, including age, guilty pleas, and heroin dependency.
- Whether the sentencing judge gave adequate weight to the applicant's personal background, including a violent upbringing and drug dependence.
- Whether the disparity between the applicant's sentence and the significantly lighter sentences received by his juvenile co-offenders in the Children's Court gave rise to a justifiable sense of grievance warranting resentencing.
Decision
The Court rejected the submission that the sentences were manifestly excessive. Buddin J identified several significant aggravating features: the offences were brazen and committed on vulnerable young victims; there were four offences in total; the applicant had prior convictions for armed robbery; and, critically, he was on parole for those prior offences at the time. The sentences were found to sit comfortably within the range established by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346.
The Court also rejected the complaint that the sentencing judge had failed to give proper weight to the applicant's personal background, noting that this submission could not succeed in light of the finding that the overall sentences were not excessive.
On the parity ground, however, the Court accepted the applicant's submission. The three juvenile co-offenders had been dealt with in the Children's Court and received substantially more lenient outcomes. Buddin J acknowledged that a court is not obliged to reduce a sentence merely because a co-offender was treated more leniently, and must guard against endorsing what may itself have been an inadequate sentence. Drawing on R v Boney [2001] NSWCCA 432, the Court accepted that the disparity here was sufficient to generate a legitimate sense of grievance, and exercised its discretion to resentence the applicant in relation to count 1 and the Form 1 matters. The adjustment was described as relatively modest. Additionally, the Court had before it fresh material demonstrating excellent progress by the applicant during custody, which it took into account.
The appeal in respect of count 2 (the sole offence) was dismissed, as parity with the co-offenders was not relevant to that count.
Orders Made
- Leave to appeal granted.
- Appeal allowed in part.
- Sentence on count 1 quashed and replaced with a total term of 3 years and 6 months, comprising a non-parole period of 18 months from 23 August 2004 (expiring 22 February 2006), with the balance expiring 22 February 2008. Form 1 matters taken into account.
- Appeal on count 2 dismissed.
Key Takeaways
- A disparity between an adult offender's sentence and those received by juvenile co-offenders dealt with in the Children's Court can give rise to a justifiable sense of grievance and ground a successful parity appeal, even where the adult's sentence is not itself manifestly excessive.
- The Court of Criminal Appeal confirmed that parity principles do not automatically require a reduction in sentence whenever a co-offender is treated more leniently. The appellate court retains a discretion and must consider whether the co-offender's sentence was so inadequate that the grievance cannot be regarded as legitimate.
- Where an applicant was on parole for prior offences of armed robbery at the time of further armed robberies, that fact constitutes significant aggravation capable of sustaining a substantial custodial sentence even in the presence of strong subjective features.
- Fresh material about an applicant's progress in custody, not placed before the sentencing judge, may be taken into account on resentencing by an appellate court.
- Rejecting a manifestly excessive submission does not, by itself, foreclose a parity ground: the two questions are treated as distinct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 95
Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Boney [2001] NSWCCA 432
- Regina v Diamond, NSW CCA, 18 February 1993 (unreported)
- Hopper, NSW CCA, 19 November 1998 (unreported)