AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
19
Court of Criminal Appeal 6 April 2005

Regina v Wei Pan

[2005] NSWCCA 114

Assault & violence
SENTENCING MALICIOUS WOUNDING IN COMPANY PARITY OFFENDER

Citation: Regina v Wei Pan [2005] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 6 April 2005
Judge(s): Giles JA, Hoeben J, Johnson J

Background

The applicant was convicted of malicious wounding in company under s 35(2) of the Crimes Act 1900, an offence carrying a maximum penalty of 10 years' imprisonment. The offence arose from a street altercation in Cabramatta in April 2003, during which the applicant and his de facto partner (the co-offender) confronted the victim over an unpaid wages dispute. The co-offender purchased a knife and both participated in an attack that left the victim with a deep laceration to his hand after he grasped the knife blade to defend himself.

The sentencing judge at the District Court imposed a term of 21 months' imprisonment with a non-parole period of 12 months. The sentencing judge found that, apart from the co-offender's pre-planning in purchasing the knife, there was no meaningful difference in the criminality of the two participants.

The applicant sought leave to appeal on a single ground: that his sentence was excessive when compared to the sentence received by the co-offender, giving rise to a justifiable sense of grievance under the parity principle. He had been released on bail pending the appeal and sought to rely on evidence of his good behaviour while on bail if the appeal were otherwise dismissed.

  • Whether the sentence imposed on the applicant was infected by error because of the disparity between his sentence and that of the co-offender, applying the parity principle.
  • Whether, upon dismissal of an appeal, the Court may nevertheless exercise its power under s 28A(2) of the Criminal Appeal Act 1912 to make a favourable order regarding the sentence, having regard to evidence of the applicant's conduct while on bail.

Decision

Parity ground: The Court found no justifiable sense of grievance arising from the sentences imposed on the two co-offenders. The sentencing judge had already recognised and accounted for the one relevant distinction between them: the co-offender had pre-planned by purchasing the knife, while the applicant had not. Beyond that single distinction, the sentencing judge found their criminality was equivalent. The parity principle did not require any adjustment to the applicant's sentence in these circumstances.

Bail conduct evidence: The more novel issue concerned whether the Court could consider evidence of the applicant's behaviour while on bail to make a favourable order under s 28A(2) of the Criminal Appeal Act 1912, even where the appeal was otherwise dismissed. Johnson J rejected this argument. The Court reasoned that fresh evidence is not admissible on a sentence appeal unless the Court has determined to re-sentence the applicant. It would be inconsistent with that principle to allow an applicant whose appeal had failed to rely on conduct during bail as a form of fresh evidence to obtain a more favourable result. Only the most exceptional case could justify such an approach, and this case did not meet that threshold.

Outcome: Leave to appeal was granted but the appeal was dismissed. The applicant's bail was revoked and the non-parole period re-commenced from the date of judgment.

Orders Made

  • Leave to appeal granted, but the appeal dismissed.
  • The applicant's bail revoked.
  • In accordance with ss 18(2) and 28A(3) of the Criminal Appeal Act 1912, the Court noted that the applicant's non-parole period would re-commence on 6 April 2005 and expire on 5 July 2005, with the balance of the term of imprisonment expiring on 4 April 2006.

Key Takeaways

  • Under the parity principle, a co-offender establishes a justifiable sense of grievance only where the sentencing judge has not adequately accounted for the relevant differences (or similarities) between offenders. Here, the sentencing court had expressly identified and applied the one meaningful distinction, leaving no viable parity ground.
  • Where the sentencing court found both participants' criminality to be equivalent except for the co-offender's pre-planning, that single distinction was sufficient to justify any difference in sentence without creating a parity error.
  • Evidence of an applicant's conduct while released on bail pending an appeal does not become available to that applicant as fresh evidence simply because s 28A(2) confers broad order-making power. Fresh evidence remains inadmissible on a sentence appeal unless the Court has decided to re-sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that s 28A(2)'s discretion to make "any order it thinks fit" does not open a separate pathway for an applicant to obtain a favourable sentencing outcome after an appeal has otherwise failed.
  • Revocation of bail upon dismissal of a sentence appeal triggers the operation of ss 18(2) and 28A(3), with the sentence re-commencing from the date of the appellate judgment rather than the original sentencing date.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (malicious wounding in company)
- Criminal Appeal Act 1912 (NSW), ss 18, 18(2), 25A, 28A, 28A(2), 28A(3)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Tran [2004] NSWCCA 366
- Lowe v The Queen (1984) 154 CLR 606
- R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported)
- R v Ilbay [2000] NSWCCA 251
- R v Boney [2001] NSWCCA 432
- R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported)