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Court of Criminal Appeal 6 September 2005

REGINA v. HUMPHRIES

[2005] NSWCCA 305

Theft & property
CRIMINAL LAW DISPARITY OF SENTENCES WHETHER LESS SEVERE SENTENCE WARRANTED JUSTIFIABLE SENSE OF GRIEVANCE NO BASIS FOR THE CLAIMED DISPARITY

Citation: Regina v Humphries [2005] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 6 September 2005
Judges: Sully J, Hidden J, Hall J

Background

The appellant was a 22-year-old man who had pleaded guilty in the Newcastle District Court to three counts of break, enter and steal under s 112(1) of the Crimes Act 1900 (NSW). He was sentenced on a joint indictment with his co-offender, his older brother, who was 10 years his senior. Seven further offences were taken into account on a Form 1, including six additional break, enter and steal offences and one count of making a false statement to a pawnbroker.

The offending involved a series of commercial and residential burglaries across the Hunter region between mid-2003 and late 2003. Stolen property included welding equipment, plumbing tools, building materials, and other construction site items, with losses in some instances exceeding $15,000.

The sentencing judge imposed a total effective sentence of three years with a non-parole period of 18 months on both brothers. The appellant sought leave to appeal, arguing he had a justifiable sense of grievance because he received the same sentence as his significantly older brother despite being younger.

  • Whether the appellant's sentence was infected by impermissible disparity, given that his co-offender brother was 10 years older than him
  • Whether age alone, in these circumstances, provided a sufficient basis to distinguish the two sentences
  • Whether the appellant could demonstrate a justifiable sense of grievance within the meaning of the principles in Lowe v The Queen and Postiglione v The Queen

Decision

Hall J, with whom Sully J and Hidden J agreed, dismissed the appeal. The Court found no basis for the claimed disparity between the sentences imposed on the appellant and his brother.

The Court noted that the appellant was an adult at the time of the offending, not a juvenile. There was also no evidence that the appellant was dependent on his older brother for guidance or direction. On the facts as found by the sentencing judge, the criminality of each brother in respect of the three common charges was assessed as identical, and the facts simply did not permit any differentiation.

The Court applied the principle from Regina v Doggett, stating that what must be demonstrated is not merely that the offender feels aggrieved, but that a reasonable person looking at the overall position would regard that sense of grievance as justified. On these facts, that threshold was not met.

The sentencing judge had taken the appellant's youth and other subjective circumstances into account in his remarks on sentence. The Court found the total effective sentence of three years with an 18-month non-parole period to be appropriate and adequately reflective of those subjective factors.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A disparity argument requires more than a subjective sense of grievance; the test is whether a reasonable person, viewing the overall position, would regard that grievance as justified.
  • Where two adult co-offenders have identical culpability on the agreed facts, a court is not required to differentiate their sentences simply because one offender is younger than the other.
  • The Court of Criminal Appeal confirmed that age alone is not automatically a sufficient basis for distinguishing between sentences imposed on adult co-offenders in otherwise equivalent circumstances.
  • No finding of dependency or undue influence by the older sibling existed on the evidence, which was a significant factor in rejecting the disparity ground.
  • In dismissing the appeal, the Court affirmed that Form 1 offences must produce a genuinely increased sentence, not merely a nominal acknowledgment of additional criminality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Pawnbrokers and Second-hand Dealers Act 1996 (NSW), s 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v Bavadra (2000) 115 A Crim R 152
- Vougdis v The Queen (1989) 41 A Crim R 125
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Regina v White (1981) 28 SASR 9
- Murrell v The Queen (1985) 4 FCR 168
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Doggett (CCA, unreported, 24 March 1997)