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Court of Criminal Appeal 28 September 2006

Grace v Regina

[2006] NSWCCA 286

Theft & property
CRIMINAL LAW: BREAK ENTER AND STEAL APPLICANT SENTENCED TO SAME TERM AS CO OFFENDER RELATIVITY OF SENTENCES OFFENDER

Citation: Grace v Regina [2006] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 28 September 2006
Judge(s): Giles JA, Grove J, Hidden J

Background

The applicant pleaded guilty in the District Court to break, enter and steal at St Vincent's Hospital, committed in the early hours of 7 March 2005. She had crouched behind a desk in the hospital's IT section; her co-offender, found carrying stolen equipment, had brandished a screwdriver at a security guard and threatened to stab him. Both offenders were sentenced in the same proceedings.

The sentencing judge imposed an identical effective sentence on both the applicant and her co-offender: three years' imprisonment with a non-parole period of eighteen months from 7 March 2005. The co-offender had also pleaded guilty to a separate charge of using an offensive weapon to resist apprehension, for which he received a concurrent twelve-month fixed term.

The applicant sought leave to appeal, arguing that the equal sentences failed to reflect meaningful differences in culpability, criminal history, and personal circumstances, and that she was left with a justifiable sense of grievance as a result.

  • Whether the applicant's sentence was manifestly excessive in light of the disparity with her co-offender's sentence
  • Whether the applicant was entitled to be treated more leniently than her co-offender, having regard to their relative roles, criminal antecedents, and personal circumstances
  • Whether the equal effective sentences gave rise to a justifiable sense of grievance warranting appellate intervention

Decision

The Court of Criminal Appeal found that the applicant had the stronger claim to leniency when the two offenders were compared. The co-offender had played the leading role in the break and enter, had committed an additional weapons offence (even if assessed at the lower end of objective seriousness), and carried a more serious criminal record that included robbery and armed robbery. The applicant's record, while lengthy, did not include offences of comparable gravity.

The co-offender's intellectual disability, caused by a childhood head injury, reduced the weight to be given to general deterrence in his case, consistent with the principles from R v Engert. However, personal deterrence remained a significant sentencing consideration for him, and the Court found the applicant's prospects of rehabilitation to be more favourable overall.

The Court also identified a structural inequity in how the concurrent sentences operated in practice. Because the applicant's pre-existing parole balance expired in September 2005, the eighteen-month non-parole period added substantially more new custodial time for her than it did for the co-offender, whose prior parole balance ran until May 2006. This compounded the disparity.

Taking all these factors together, the Court was satisfied that the applicant was entitled to more lenient treatment than her co-offender and that receiving the same effective sentence left her with a justifiable sense of grievance. The appeal was allowed and the sentence reduced.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • District Court sentence quashed
  • Applicant re-sentenced to imprisonment for two and a half years, commencing 7 March 2005
  • Non-parole period to commence 7 March 2005 and expire 22 June 2006
  • Applicant ordered to be released on parole on 22 June 2006

Key Takeaways

  • A co-offender who plays a leading role, commits an additional offence during the same episode, and carries a more serious criminal record is not appropriately sentenced to the same effective term as a less culpable co-offender, even where that co-offender also has a lengthy record.
  • Where an intellectual disability reduces the weight given to general deterrence, this does not automatically justify equivalent leniency to a co-offender whose different circumstances independently support a lighter sentence; personal deterrence may still weigh heavily.
  • Sentence parity requires close attention to how concurrent pre-existing terms interact with a fresh non-parole period, since identical nominal terms can impose materially different additional burdens on co-offenders depending on their respective parole positions.
  • The Court of Criminal Appeal confirmed that a justifiable sense of grievance, grounded in identifiable differences in culpability and personal circumstances, is a proper basis for appellate intervention in sentencing.
  • Rehabilitative prospects form part of the comparative analysis between co-offenders; a more favourable prognosis may support a lighter sentence even where both offenders have histories of drug dependence and prior imprisonment.

Legislation and Cases Referenced

Cases:
- R v Engert (1995) 84 A Crim R 67 (principles on the relevance of a mental disability or intellectual deficit to the weight given to general deterrence in sentencing)