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Court of Criminal Appeal 15 September 2006

DGM v REGINA

[2006] NSWCCA 296

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCE APPEAL PARITY OFFENDER

Citation: DGM v Regina [2006] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 15 September 2006
Judge(s): McColl JA, Adams J, Latham J

Background

The applicant was convicted in the District Court of armed robbery under s 97(2) of the Crimes Act 1900, carrying a maximum of 25 years' imprisonment. The offence involved a carefully planned home invasion at a Manly residence in July 1997, during which a female victim was confronted by three balaclava-wearing men armed with sawn-off shotguns, forced to open safes containing $275,000 in cash, and left tied up. A related malicious damage by fire offence from September 1997 was taken into account on a Form 1 at sentencing.

The applicant was sentenced by Karpin DCJ in the District Court on 19 November 2004 to six years' imprisonment with a non-parole period of four years and six months, commencing 20 June 2004. He sought leave to appeal to the Court of Criminal Appeal, raising grounds relating to parity with a co-offender whose sentence had been reduced on appeal to account for totality.

The applicant's co-offenders had been sentenced at various points, and one co-offender's sentence had been reduced on a separate appeal. The question was whether that reduction created an unjustifiable sentencing disparity that entitled the applicant to a corresponding reduction.

  • Whether the applicant's sentence was infected by a parity problem arising from a co-offender's sentence being reduced on appeal for totality reasons.
  • Whether the disparity between the applicant's sentence and the reduced sentence of a co-offender engendered a justifiable sense of grievance.
  • Whether pre-sentence custody had been properly accounted for in the original sentence.

Decision

The Court of Criminal Appeal rejected the parity argument as a basis for reducing the applicant's sentence. It found that the co-offender's sentence had been reduced not because the original sentence was inadequate, but for totality reasons specific to that co-offender's individual circumstances. A reduction in one co-offender's sentence for such a reason does not, without more, create a disparity that entitles another co-offender to a corresponding reduction. The Court confirmed that the parity principle does not operate mechanically: where the lower sentence results from a matter peculiar to that offender, any sense of grievance on the part of others would not be a legitimate one.

The Court also confirmed that the discretion to reduce an otherwise appropriate sentence to remove disparity may be declined where the inadequacy of the lower sentence is so grave that granting relief would become an affront to the proper administration of justice.

However, the Court did find that pre-sentence custody had not been properly accounted for in the original sentence. The applicant had been in custody from 9 June 2004, yet the sentence was expressed to commence from 20 June 2004, leaving an 11-day gap. On that narrow ground, leave to appeal was granted and the appeal allowed.

A subsequent amendment to the judgment addressed a consequential gap in the applicant's sentence cascade. The Court of Criminal Appeal's adjustment to the non-parole period created a gap before the commencement of a separate sentence imposed by Puckeridge DCJ for breach of a community service order. The Court remedied this by adjusting the commencement date of that subsequent sentence under s 59 of the Crimes (Sentencing Procedure) Act 1995.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 19 November 2004 quashed; in lieu, the applicant sentenced to a non-parole period of four years and six months commencing 9 June 2004, expiring 8 December 2008, with a balance of term of 18 months expiring 8 June 2010.
  • The sentence imposed in the District Court on 27 January 2006 for breach of community service orders to commence on 9 December 2008 and expire on 8 January 2009.

Key Takeaways

  • The parity principle does not automatically entitle a co-offender to a reduction simply because another co-offender's sentence was reduced on appeal. The source and rationale of that reduction must be examined.
  • Where a co-offender's sentence was reduced on totality grounds specific to that person's circumstances, the resulting disparity may not generate a legitimate sense of grievance in other co-offenders.
  • The Court of Criminal Appeal confirmed that the discretion to reduce a sentence to cure disparity can be withheld where the lower sentence is so inadequate that granting relief would constitute an affront to the administration of justice, following principles established in R v Diamond and affirmed in R v Chen & Others.
  • Pre-sentence custody must be accurately reflected in the commencement date of any sentence; a discrepancy of even a small number of days will be corrected on appeal.
  • Adjusting one sentence in a cascade of consecutive or related sentences may require consequential adjustments to later sentences to avoid unintended gaps, which the Court addressed here under s 59 of the Crimes (Sentencing Procedure) Act 1995.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 97(2), 195B, 558
- Crimes (Sentencing Procedure) Act 1995 (NSW) s 59

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Boney [2001] NSWCCA 432
- R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300
- R v Diamond NSWCCA, 18 February 1993 (unreported)
- R v Kelly [2005] NSWCCA 280
- R v Reardon (1996) 89 A Crim R 180
- R v Steele NSWCCA, 17 April 1997 (unreported)