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Court of Criminal Appeal 6 April 2005

Regina v McIlwraith

[2005] NSWCCA 137

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE AGGRAVATED ROBBERY PARITY WITH CO NO OBLIGATION SO TO DO

Citation: Regina v McIlwraith [2005] NSWCCA 137
Court: Court of Criminal Appeal of New South Wales
Date: 6 April 2005
Judge(s): Hunt AJA, Grove J, Hall J

Background

The applicant pleaded guilty before a magistrate to a single charge of aggravated robbery, with the circumstance of aggravation being that he maliciously inflicted actual bodily harm. The offence involved a violent attack on a male employee at a video store in Dee Why in January 2004, during which the applicant punched the victim repeatedly on three separate occasions, causing bilateral nasal fractures and other head injuries, while cash and mobile phones were taken from the premises. The applicant was arrested approximately one hour after the offence and was found still in possession of most of the stolen cash. He had been released from his most recent period of custody only four months before committing this offence.

The applicant was sentenced in the District Court by Balla DCJ to a total term of six years imprisonment with a non-parole period of four years and six months. His early guilty plea was recognised with a 25 percent reduction. A co-offender, Lockrey, was separately tried, convicted, and sentenced by Hock DCJ to a total term of five years imprisonment with a non-parole period of three years.

The applicant sought leave to appeal against the severity of his sentence on two grounds: first, that the disparity between his sentence and Lockrey's was unjustifiably large; and second, that the sentencing judge failed to find special circumstances warranting departure from the statutory non-parole period formula under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentence disparity between the applicant and his co-offender Lockrey gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention.
  • Whether the sentencing judge erred by declining to find "special circumstances" and departing from the statutory formula for setting the non-parole period.
  • Whether a judge is required to give reasons for declining to depart from the statutory non-parole period proportion.

Decision

On the disparity ground, the Court found that any sense of grievance harboured by the applicant was not justifiable. The Court emphasised the significant differences between the two offenders: the applicant was four years older than Lockrey, had a substantially more extensive criminal record, had inflicted all of the serious violence personally, and was found in possession of the bulk of the stolen money. Critically, Hock DCJ had found that Lockrey did not know the applicant intended to use violence when they entered the store. The Court held that the differentiations drawn by Hock DCJ when sentencing Lockrey were entirely appropriate, and that parity with a co-offender who was markedly less involved in the offending was not required.

On the non-parole period ground, the Court rejected the submission that the sentencing judge had erred by failing to find special circumstances. The Court noted that adherence to the statutory formula is itself an implicit reason, and that no additional obligation to elaborate exists beyond what the statute requires. Citing the Court of Criminal Appeal's earlier decision in R v Simpson, the Court confirmed there is no obligation on a sentencing judge to give reasons for declining to vary the statutory proportion. The Court found the non-parole period was not manifestly excessive, particularly given the applicant's commission of the offence whilst on parole, the entirely unprovoked nature of the violence, and the multiple separate instances of the attack. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Sentence parity with a co-offender is not required where that co-offender was markedly less involved in the offending, did not anticipate the violence used, and had substantially different personal circumstances and criminal history.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge is not obliged to give reasons for declining to depart from the statutory non-parole period formula; adherence to the statute constitutes an inherent and implicit reason.
  • No error is necessarily implied by a judge's absence of elaboration when applying the standard non-parole period proportion. An appellate court is not obliged to intervene simply because a judge has applied the statutory formula without further explanation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate intervention on a non-parole period will generally be reserved for cases where the period is found to be manifestly inadequate or manifestly excessive.
  • Commission of an offence whilst on parole, particularly shortly after release, is a significant aggravating factor that the sentencing court is entitled to weigh heavily when assessing the appropriate non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- R v Hoshke [2001] NSWCCA 317
- R v Fidow [2004] NSWCCA 172
- R v Hookey [2004] NSWCCA 223
- R v Phillips [2003] NSWCCA 373
- R v Simpson (2001) 53 NSWLR 704