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Court of Criminal Appeal 25 August 2006

Lin v Regina

[2006] NSWCCA 258

Assault & violenceFraud & dishonesty
CRIMINAL LAW SENTENCE NON PAROLE PERIOD PARITY

Citation: Lin v Regina [2006] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 25 August 2006
Judge(s): Grove J, Kirby J, Hislop J

Background

The appellant pleaded guilty to aggravated detention of a victim without consent, with intent to obtain a financial advantage, contrary to s 86(2) of the Crimes Act 1900. The offence involved a coordinated kidnapping and extortion scheme carried out at a karaoke club in Sydney's Chinatown, during which the victim was held for several hours, assaulted, robbed of cash, and coerced into signing an IOU for $15,000.

The appellant played the role of enforcer within the joint criminal enterprise: he grabbed and slapped the victim, punched him in the face, and kicked him in the ribs. A co-offender, Li, played a different role as facilitator, setting up the initial encounter and pursuing payment on the IOU for more than a week after the incident.

In March 2005, the District Court sentenced the appellant to a non-parole period of 3 years and 9 months. The appellant sought leave to appeal, arguing that his non-parole period was disproportionately longer than the 3 years and 3 months ultimately imposed on Li, and that parity principles required the sentences to correspond.

  • Whether the parity principle required the appellant's non-parole period to be reduced to correspond with that imposed on his co-offender Li.
  • Whether there was a "real distinction" between the roles of the appellant and Li that justified the disparity in their non-parole periods.
  • Whether a bare percentage calculation of the non-parole period to total term is a reliable indicator of whether special circumstances have been given proper effect.

Decision

The Court of Criminal Appeal held that it was open to the sentencing judge to conclude there was no real distinction between the positions of the appellant and Li. While the appellant was the more physically violent participant, both played integral roles in a joint criminal enterprise and each bore responsibility for the acts of the others involved in carrying it out. The Court found the difference in their non-parole periods was not justified on the facts.

Applying parity principles, the Court reduced the appellant's non-parole period from 3 years and 9 months to 3 years and 3 months, bringing it into line with the period imposed on Li.

On the separate question of percentage calculations, Grove J observed that neither of the cases raised by the parties established that a miscarriage of discretion can be determined from a bare percentage comparison of non-parole period to total term. The practical effect of any given percentage varies significantly depending on the length of the total sentence, so every case must be assessed on its particular facts and circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence quashed and replaced with a non-parole period of 3 years and 3 months commencing 29 May 2003 and expiring 28 August 2006, with a balance of term of 2 years and 1 month commencing 29 August 2006 and expiring 28 September 2008.
  • Earliest date of eligibility for release to parole: 28 August 2006.

Key Takeaways

  • Parity principles require that co-offenders not receive sentences that are unjustifiably disparate, where there is no real distinction between their positions in the commission of an offence.
  • A finding that co-offenders occupied comparable roles in a joint criminal enterprise is open to a sentencing court even where each offender performed distinct functions within the scheme.
  • Shared liability in a joint criminal enterprise does not automatically translate to equal culpability or equivalent sentences in every case; the principle in this decision turns on the particular facts found.
  • Bare percentage calculations comparing a non-parole period to the total term are not, by themselves, a reliable method for determining whether special circumstances have been given proper effect; context and the actual length of the sentence matter.
  • In dismissing the Crown's distinction between the "enforcer" and "facilitator" roles as determinative, the Court of Criminal Appeal confirmed that physically violent conduct does not necessarily elevate an offender's position so as to displace parity with a co-offender whose involvement was less direct but equally sustained.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2), 86(3), 99(2)

Cases:
- Fidow v R [2004] NSWCCA 172
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Kelly (2005) 155 A Crim R 499
- Sutton v R [2004] NSWCCA 225