Citation: Regina v Freeman [2005] NSWCCA 460
Court: NSW Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Grove J, Sully J, Howie J
Background
The appellant and her co-offender pleaded guilty to aggravated stealing from the person, following a violent attack on an 18-year-old woman on a train. The co-offender punched the victim, fracturing her nose, while the appellant seized the victim's backpack. Both offenders were arrested on the day of the offence, 30 July 2004, and remained in custody from that date.
At sentencing in the District Court, both received identical terms: a non-parole period of two years and a total term of three years and four months. However, because the co-offender had an outstanding warrant for a separate offence (goods in custody), she received a three-month sentence for that matter commencing 30 July 2004. Her sentence for the current offence was then directed to commence one month later, on 30 August 2004, effecting a partial cumulation.
The practical result was that the appellant would serve 24 months in full-time custody for this offence, compared with 22 months for the co-offender. The appellant sought leave to appeal on the ground that this disparity gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the appellant was entitled to a greater discount for her guilty plea than the co-offender, given she made her offer to plead guilty ten days before trial rather than on the day of trial
- Whether the respective roles of each offender in the offence warranted different sentences
- Whether differences in age, maturity, and intellectual functioning justified more lenient treatment of the appellant
- Whether the difference in effective full-time custody for the current offence, resulting from the co-offender's partially cumulative sentence for an unrelated matter, created an unjustifiable sentencing disparity
Decision
Grove J rejected the first three grounds without difficulty. The ten-day advance offer to plead guilty did not warrant a differentiated discount. On the question of roles, while the appellant took the bag and the co-offender inflicted the violence, the appellant's guilt for aggravated stealing from the person necessarily involved intentional participation in and encouragement of the violence, making it impermissible to isolate her conduct to the bag-taking alone.
On age and maturity, Hulme DCJ had expressly considered the appellant's youth and psychological presentation, but concluded that the overall picture of both offenders' subjective circumstances did not justify differentiation. The Court of Criminal Appeal found no error in that conclusion, noting that the appellant's criminal history, despite her youth, offered her less basis for leniency than the co-offender.
The final ground succeeded. Drawing on the principle in Postiglione v The Queen, Grove J held that where co-offenders are involved, the relevant measure of punishment is the actual period to be served in consequence of the offences committed. The two-month difference in full-time custody attributable to the current offence, within a 24-month non-parole period, was not trivial and was properly characterised as "marked." The Court was satisfied the appellant harboured a justifiable sense of grievance.
The Crown had candidly considered conceding the appeal to reduce the sentence by two months but ultimately opposed it, arguing the disparity arose from a legitimate application of totality principles when sentencing the co-offender, and that the prior record distinction was relevant. Grove J acknowledged the force of those submissions but concluded that the parity principle nonetheless required adjustment.
Orders Made
- Leave to appeal against sentence granted; appeal allowed
- Sentence imposed in the District Court quashed
- In lieu thereof, the appellant was sentenced to imprisonment with a non-parole period of one year and ten months commencing 30 July 2004 and expiring 29 May 2006, with a parole period of one year and four months commencing 30 May 2006 and expiring 29 September 2007
- Earliest date of eligibility for release to parole specified as 29 May 2006
Key Takeaways
- A two-month difference in effective full-time custody, within a 24-month non-parole period, can constitute a "marked" disparity sufficient to ground a justifiable sense of grievance under the parity principle.
- Where cumulation applies to a co-offender's sentence because of an unrelated offence, the sentencing court must still ensure that the real punishment each co-offender serves for the shared offence remains comparable; a mechanically identical head sentence does not guarantee parity.
- Participation in a joint criminal enterprise can prevent a defendant from relying solely on her own physical acts: the Court of Criminal Appeal confirmed that the appellant's guilt for aggravated stealing from the person necessarily encompassed her intentional encouragement of the co-offender's violence.
- The Postiglione principle directs attention to the actual period to be served as the true measure of punishment, not simply the nominal structure of the sentence imposed.
- A guilty plea communicated ten days before trial, compared with a co-offender's plea entered on the trial date, does not automatically warrant a greater sentencing discount in favour of the earlier-offering defendant.
Legislation and Cases Referenced
Cases:
- Postiglione v The Queen (1997) 189 CLR 295
Legislation:
No specific legislation was cited in the provided text. The offence of aggravated stealing from the person carries a maximum penalty of 20 years imprisonment under NSW law.