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Court of Criminal Appeal 3 February 2005

Regina v Suey

[2005] NSWCCA 22

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING APPLICANT STOPPED ONE OF HIS CO WHETHER ANY BASIS FOR PARITY ARGUMENT

Citation: Regina v Suey [2005] NSWCCA 22
Court: New South Wales Court of Criminal Appeal
Date: 3 February 2005
Judges: Hunt AJA, Grove J, James J

Background

The applicant was convicted after a jury trial in the District Court in September 1998 on nine charges arising from events on the night of 29 and 30 November 1996 in a remote rural area of New South Wales. The offences included breaking and entering a dwelling house in circumstances of special aggravation, kidnapping a fifteen-year-old girl, and six counts of aggravated sexual intercourse without consent against that same complainant. A co-offender named Talbot and a juvenile co-offender were also involved.

Judge Morgan sentenced the applicant to a leading sentence of twenty years imprisonment (minimum term of fifteen years, additional term of five years) for the breaking and entering offence in circumstances of special aggravation, with fixed concurrent terms for the remaining offences. The sentences commenced from November 1997.

The matter came before the Court of Criminal Appeal not through a conventional appeal but by way of referral from Greg James J for a review of the sentences. The referral arose because of a matter that had not been before the sentencing judge: during the offending, the applicant had intervened to stop one of his co-offenders from attacking the complainant with a wheel brace.

  • Whether the newly discovered fact that the applicant had intervened to protect the complainant from a wheel brace attack, had it been known to Judge Morgan, would have affected her findings on contrition.
  • Whether the applicant had any basis for a parity argument when compared to co-offender Talbot, or to the juvenile co-offender, given the additional material now relied upon.
  • Whether the sentences imposed by Judge Morgan should stand following the review.

Decision

The Court examined whether the intervention by the applicant to stop a co-offender attacking the complainant with a wheel brace was capable of affecting the sentencing outcome, particularly the findings on contrition. James J concluded that this matter, while not known to Judge Morgan at the time of sentencing, was insufficient to alter her conclusions. The sentencing judge had found that the applicant had shown no contrition, and the intervention did not provide a basis to disturb that finding.

On the parity argument, the Court found there was no proper basis for comparing the applicant's sentence with that of Talbot. Talbot had been sentenced for only three offences, was found to have played a lesser role, had pleaded guilty at the earliest reasonable opportunity, and had provided significant assistance to the authorities. Additionally, Talbot's sentences had been increased on a successful Crown appeal, and the Court of Criminal Appeal had imposed what it considered to be below the proper sentences in any event. These differences in circumstances meant the applicant and Talbot were not in a sufficiently comparable position for a parity argument to succeed.

Similarly, no parity argument arose in relation to the juvenile co-offender. The reasons given in the related Crown appeal judgment against the sentences imposed on Talbot had already addressed the relevant considerations. The additional material raised in the review was simply insufficient to found any such argument.

Orders Made

  • The sentences imposed by Judge Morgan in the District Court are to stand.

Key Takeaways

  • A single intervening act of some protective value by an offender during the commission of serious crimes does not automatically undermine a sentencing judge's finding that the offender showed no contrition, particularly where that act was not known to the sentencing court at the time.
  • The Court of Criminal Appeal confirmed that a parity argument requires genuine comparability between co-offenders; differences in the number of charges, the role played, plea timing, cooperation with authorities, and the history of any appeals are all relevant considerations.
  • Where a co-offender's sentence has already been increased on a Crown appeal but was still set below what the appellate court considered appropriate, that sentence provides an unreliable benchmark for any parity comparison.
  • In dismissing the challenge to the original sentences, the Court treated the referral for review as having no greater effect than an appeal in terms of the outcome: if no error or new matter of sufficient weight is established, the original sentences stand.
  • Grove J reserved the question of whether, on a review under s 474H(2)(b) of the Crimes Act 1900, the Court should apply the same procedures and limitations applicable to the receipt of fresh evidence on a conventional appeal. That issue was not decided in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 33B(1)(a), 61J, 90A, 112(3), 474H(2)(b)
- Children (Criminal Proceedings) Act (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610