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Court of Criminal Appeal 28 July 2006

Huynh v R

[2006] NSWCCA 224

Assault & violenceTheft & propertyFirearms & weapons
PARITY OF SENTENCE AGGRAVATING FEATURES ACCUMULATION OF SENTENCE SPECIAL CIRCUMSTANCES

Citation: Huynh v R [2006] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 28 July 2006
Judge(s): Hidden J (with Kirby J and Hislop J agreeing)

Background

The appellant was convicted after trial in the District Court of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act, which carries a maximum of 25 years' imprisonment. The offence involved a group of four people robbing an Asian grocery store in Cabramatta in March 2002. The appellant drove the group to and from the scene, while a co-offender entered the shop armed with a loaded pistol and fired a shot into the ceiling. The shopkeeper, his adult daughter, and his 11-year-old son were present.

The sentencing judge, Hock DCJ, imposed nine years' imprisonment with a non-parole period of five and a half years. That sentence was partly accumulated upon a separate sentence the appellant was already serving for manslaughter arising from a "bungled robbery" committed just three days before the grocery store robbery. His co-offender, who had carried and fired the weapon, received the same nine-year term.

The appellant sought leave to appeal on the grounds that his sentence was disproportionate to those received by co-offenders, that certain matters were wrongly treated as aggravating factors, that the non-parole period was inadequate given the accumulation, and that the sentence was manifestly excessive.

  • Whether the appellant had a justifiable sense of grievance about receiving the same sentence as the co-offender who carried and fired the weapon (parity of sentence)
  • Whether the sentencing judge wrongly took certain matters into account as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the partial accumulation of sentences produced an effective non-parole period that was inadequate in the circumstances
  • Whether the overall sentence was manifestly excessive

Decision

Parity with the armed co-offender: The Court accepted that the appellant played a lesser role than the co-offender who carried and fired the gun. However, the manslaughter sentence the appellant was already serving arose from a separate robbery just three days earlier, committed in company with the same co-offender. The sentencing judge was entitled to treat the manslaughter as a significant aggravating feature specific to the appellant. That distinction justified imposing the same headline sentence on both men despite the difference in their roles in the grocery store robbery.

Parity with the third co-offender: A different co-offender, who had pleaded guilty to robbery in company rather than armed robbery, received a substantially lighter sentence. The Court found this disparity was justified by the different charge, the guilty plea, and other distinguishing circumstances. No justifiable sense of grievance arose from that comparison.

Aggravating factors: The appellant challenged the sentencing judge's characterisation of the firing of the gun as an aggravating factor, arguing it was already an element of the offence. The Court rejected this, finding that the sentencing judge was clearly referring to the actual discharge of the weapon as a discrete act of violence beyond the mere presentation of it. The description was expressed loosely but conveyed a permissible aggravating circumstance. No error was established on this ground.

Non-parole period and accumulation: The Court acknowledged that the combined effect of the two sentences produced an effective non-parole period of approximately 71 percent of the total 12-year aggregate term, close to the statutory norm of 75 percent. The Court found this was the intended result of applying the totality principle and did not represent error. The structure of the sentences still left the appellant with three and a half years to be served in the community on parole, which the Court described as a substantial period.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A co-offender's lesser physical role in an offence does not automatically produce a justifiable grievance about receiving the same sentence, where the sentencing court identifies a significant aggravating factor that is specific to that offender and absent from the other.
  • Under the parity principle, the relevant test is objective: whether a reasonable observer would consider the grievance justified, not whether the offender subjectively feels aggrieved.
  • Where a sentencing judge finds special circumstances and finds partially accumulates sentences, the resulting effective non-parole period may legitimately approach the statutory norm if that reflects the correct application of the totality principle.
  • Firing a weapon during an armed robbery can be treated as a discrete aggravating circumstance, distinct from the mere presentation of the weapon that forms an element of the offence itself.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a severe sentence will not be disturbed on appeal unless it can be shown that the sentencing judge's discretion miscarried.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (robbery whilst armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) (aggravating factors)

Cases:
- R v Kelly [2005] NSWCCA 280
- Veen v The Queen (No 2) (1998) 164 CLR 465
- R v Hathaway [2005] NSWCCA 368
- Lowe v The Queen (1984) 154 CLR 606 (cited within R v Kelly)