Citation: Regina v SB [2005] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 7 March 2005
Judge(s): Spigelman CJ, Grove J, Bell J
Background
Two juvenile co-offenders, both aged 17, pleaded guilty to the same charges arising from an armed robbery at licensed premises in Chatswood in the early hours of 24 September 2003. The offences involved a loaded firearm, a knife, multiple victims terrorised, and a firearm discharged inside the premises. Both offenders were on probation at the time.
The sentencing judge in the District Court imposed identical sentences on both co-offenders: a principal term of six years and six months with a non-parole period of three years and six months for the armed robbery, with concurrent fixed terms for the remaining charges. The non-parole period was to be served in a juvenile detention centre.
The applicant sought leave to appeal, arguing that his subjective circumstances were materially stronger than those of his co-offender and that receiving an identical sentence therefore gave rise to a legitimate sense of grievance, offending the parity principle.
Legal Issues
- Whether identical sentences imposed on co-offenders with different subjective features offend the parity principle
- Whether the sentencing judge erred in equating the rehabilitation prospects and likelihood of re-offending of the two offenders
- Whether the applicant's more favourable subjective circumstances warranted a lesser sentence than that imposed on his co-offender
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Spigelman CJ acknowledged that the sentencing judge had considered the subjective features of each offender in considerable detail and had done so accurately and with reasonable balance. The judge did, however, equate the rehabilitation prospects of the two co-offenders in general terms.
The applicant's counsel pointed to two particularly significant subjective factors under the Crimes (Sentencing Procedure) Act 1999: the offender's prospects of rehabilitation (s21A(3)(h)) and the likelihood of re-offending (s21A(3)(g)). On the question of remorse (s21A(3)(i)), the Court found no material difference between the two offenders.
The Court accepted that, in the period immediately before sentencing, the applicant had shown greater responsiveness to his offending history than the co-offender. However, the Court also noted that in an earlier period the reverse had been true, and that in neither case had prior indications of rehabilitation proved accurate, given that both offenders had gone on to commit the present serious offences.
The Court held that the sentencing judge's predictive judgment, treating the two offenders as comparably placed in terms of rehabilitation prospects and likelihood of re-offending, was a finding open to her on the evidence. In those circumstances, the parity principle was not offended and the applicant had no legitimate sense of grievance.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The parity principle does not automatically require a lesser sentence simply because a co-offender shares identical charges but has weaker subjective circumstances; the sentencing court must make a predictive judgment about rehabilitation prospects, and where that judgment equates the offenders, identical sentences may stand.
- A momentary advantage in rehabilitation indicators does not compel a finding of superior prospects: the Court of Criminal Appeal noted that prior periods had favoured each offender in turn, and that neither's earlier signs of rehabilitation had ultimately held.
- Where a sentencing judge's assessment of comparative rehabilitation prospects is open on the evidence, an appellate court will not interfere merely because another view was available.
- In dismissing the appeal, the Court confirmed that the parity principle requires an applicant to demonstrate a legitimate sense of grievance, not merely a difference in subjective features; the difference must be of a kind that the sentencing exercise failed to accommodate appropriately.
- Predictive judgments about future offending and rehabilitation are inherently difficult, and sentencing judges retain a discretion to treat co-offenders as comparably placed even where their recent histories differ.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): s 93G(1)(b) (discharge firearm in public place), s 97(2) (robbery armed with dangerous weapon), s 154A (take and drive conveyance without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 3A(d), s 21A(3)(g) (likelihood of re-offending), s 21A(3)(h) (prospects of rehabilitation), s 21A(3)(i) (remorse)
Cases:
- R v GDP (1991) 53 A Crim R 112