Citation: Regina v Christian Bernard Mougin [2005] NSWCCA 146
Court: New South Wales Court of Criminal Appeal
Date: 18 April 2005
Judge(s): Grove J, Barr J, Howie J
Background
The applicant was sentenced in the District Court following pleas of guilty to multiple charges of aggravated breaking, entering and stealing, along with a charge of breaking and entering with intent to steal. Seven further offences were taken into account, including possession of housebreaking implements. The offences involved the applicant and co-offenders, including his de facto partner and her brother, breaking into office buildings on weekends to steal laptop computers and other equipment. In total, property worth approximately $87,580 was stolen, of which about $38,700 was recovered.
Judge Ainslie-Wallace imposed a total effective sentence of six years and six months, with a non-parole period of four years and six months. Her Honour found special circumstances, justifying adjustment of the standard parole-to-non-parole ratio, based on the partial accumulation of sentences and the applicant's rehabilitation prospects. The applicant sought leave to appeal against those sentences.
Legal Issues
- Whether the sentencing judge allowed a sufficient discount for the pleas of guilty, particularly the plea entered in the Local Court
- Whether the sentences imposed on the applicant were manifestly excessive when compared with the lesser sentences received by his co-offenders, his de facto partner and her brother
Decision
On the first ground, Barr J found that her Honour had properly recognised and credited the pleas of guilty. The applicant had a substantial criminal history, including prior convictions for similar property offences. Critically, some of the offences were committed while he was on parole, and subsequent offences were committed while he was on bail. The sentencing judge was entitled to take these circumstances into account, and no error in the discount applied was established.
On the parity ground, the court examined the sentences imposed on the two co-offenders, Alicia Willoughby and Matthew Willoughby, and compared them with the applicant's sentence. Alicia Willoughby received a two-year fully suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act. Her Honour considered this outcome so inadequate as a reflection of the objective seriousness of her offending that it would have been erroneous to use it as a comparator. The court agreed with that assessment.
Regarding Matthew Willoughby, who received an effective head sentence of three years and six months with a non-parole period of eighteen months, the court found that the lesser sentence was well justified by his fewer offences, better criminal record, and younger age. Barr J concluded that the applicant had no justifiable sense of grievance arising from either comparison.
The Court of Criminal Appeal unanimously found that no lesser sentence was warranted in law and dismissed the appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge may decline to use a co-offender's sentence as a parity comparator where that sentence so inadequately reflects the objective seriousness of the offending as to be erroneous in itself.
- A legitimate parity argument requires that the applicant show a justifiable sense of grievance; differences in the number of offences, criminal history, and role in the offending can fully explain sentencing disparities between co-offenders.
- Committing offences while on parole, and committing further offences while on bail for earlier offending, are aggravating circumstances that the sentencing court is entitled to weigh heavily against an offender.
- In dismissing the appeal, the court treated the partial accumulation of sentences and rehabilitation prospects as an adequate basis for a special circumstances finding, justifying the adjustment of the parole-to-non-parole ratio.
- No error was established in the discount applied for the guilty pleas, even where pleas were entered at different stages of proceedings in different courts.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12 (suspended sentences)
Cases:
- No specific cases were cited in the portions of the judgment provided.