Citation: Connor v R [2005] NSWCCA 431
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judges: McClellan CJ at CL, Studdert J, James J
Background
The applicant was sentenced in the District Court at Grafton on 20 May 2004 for five offences of aggravated break, enter and steal committed in company. The offences involved breaking into various licensed club premises at night and stealing money from poker machines. The total amount stolen was $3,454 and property damage totalled $1,960.
The applicant was sentenced alongside a co-offender, Andrews, who faced six counts arising from the same series of offences. The sentencing judge treated the two offenders as broadly comparable, and imposed a slightly longer effective sentence on Andrews to reflect the additional count.
Andrews subsequently appealed his sentences to the Court of Criminal Appeal and succeeded. The present applicant then sought leave to appeal his own sentences, arguing that the outcome in Andrews' appeal meant he now had a justifiable sense of grievance about the disparity between his sentence and that of his co-offender.
Legal Issues
- Whether the sentencing judge erred in failing to give proper weight to the applicant's subjective case, particularly his early personal history
- Whether the applicant had a justifiable sense of grievance arising from the co-offender's successful appeal and resentencing
- Whether the compensation direction made against the applicant under s 77B of the Victims' Support and Rehabilitation Act 1996 was correctly formulated, particularly given that an overlapping direction had also been made against the co-offender
Decision
Justifiable sense of grievance. The Court of Criminal Appeal had already held in R v Andrews that the sentencing judge erred by treating the applicant's early personal history as entirely irrelevant to sentencing. Because the sentencing remarks were delivered jointly for both offenders, the same error infected the applicant's sentence. As a result of that error, Andrews was resentenced to a reduced term. The Court accepted that the applicant now had a justifiable sense of grievance: after the co-offender's successful appeal, the applicant was effectively serving a longer sentence than Andrews, despite Andrews originally receiving the heavier penalty. That disparity was not explicable by legitimate sentencing distinctions.
Resentencing on count 6. The Court confirmed the sentences on counts 2 through 5 but quashed the sentence on count 6, which was the head sentence. In substitution, the Court imposed a non-parole period of three years commencing 20 November 2003, with a balance of term of one year, bringing the applicant's total effective sentence into appropriate parity with the resentenced co-offender.
Compensation direction. The sentencing judge had made compensation directions against both the applicant and Andrews under s 77B of the Victims' Support and Rehabilitation Act 1996. Because the two directions overlapped in respect of the same losses, there was a risk of victims receiving double compensation, which the Act does not permit. The Court held that victims should retain the ability to enforce the direction against either offender, maximising their prospects of actual recovery, but the directions should be framed to prevent double recovery. The Court varied the direction against the applicant to provide that his liability would be reduced by any payment made by Andrews under the co-offender's direction, to the extent that payment covered the same loss.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentences on counts 2, 3, 4 and 5 confirmed
- Sentence on count 6 quashed and replaced with a non-parole period of three years (commencing 20 November 2003, expiring 19 November 2006) and a balance of term of one year (commencing 20 November 2006, expiring 19 November 2007); applicant eligible for parole on 19 November 2006
- Compensation direction under s 77B varied to add that the applicant's liability is reduced by any payment made by Andrews under the direction against him, to the extent that payment covers the same loss
Key Takeaways
- A justifiable sense of grievance can arise not only from co-offenders being sentenced at the same time, but also from a co-offender's subsequent successful appeal that alters the sentencing landscape after the original proceedings.
- Where the same sentencing error infects the remarks on sentence delivered jointly for multiple co-offenders, that error may ground a separate appeal by the offender who was not a party to the first appeal.
- Under s 77B of the Victims' Support and Rehabilitation Act 1996, compensation directions can be made against multiple co-offenders in respect of the same loss, but the directions should be framed to prevent victims from receiving double compensation beyond the actual loss sustained.
- Where overlapping compensation directions are made, the preferred approach is to allow victims to enforce against whichever offender is practically able to pay, while giving the paying offender a right to seek contribution from the other, rather than limiting each direction to a fixed proportion of the loss.
- In dismissing a challenge to the sentencing judge's findings of objective seriousness, the Court confirmed that the offences fell towards the bottom of the range for aggravated break, enter and steal, given the minimal planning, absence of violence, and modest amounts stolen.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 112
- Criminal Appeal Act (NSW), s 9
- Law Reform (Miscellaneous Provisions) Act (NSW), s 5
- Victims' Support and Rehabilitation Act 1996 (NSW), ss 77B, 77D, 77F, 77G
Cases:
- Re Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield & Ors (1999) 48 NSWLR 327
- R v Andrews [2005] NSWCCA 199
- R v Roby [2003] NSWCCA 242
- R v Van Hoang (2002) 135 A Crim R 244