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Court of Criminal Appeal 4 December 2006

KHARE v THE QUEEN

[2006] NSWCCA 388

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING ROBBERY IN COMPANY WHETHER THERE HAD BEEN A PRE PARITY OF SENTENCE WITH CO OFFENDER.

Citation: Khare v The Queen [2006] NSWCCA 388
Court: New South Wales Court of Criminal Appeal
Date: 4 December 2006
Judge(s): Basten JA, Hidden J, Bell J

Background

The appellant was one of three young men who robbed a university student on a train travelling between Strathfield and Parramatta late one evening. The offence involved threats to kill, physical assault, and the theft of a phone, iPod, and hat. The appellant played the most active role, confronting the victim, demanding his wallet, and making the threats.

Sentenced in the District Court for robbery in company under s 97(1) of the Crimes Act 1900 (NSW), the appellant received a non-parole period of 16 months and a further term of 18 months. He had entered a guilty plea before trial, which attracted a 15% reduction, and had been participating in a Salvation Army drug rehabilitation program (the "Bridge program") prior to sentencing.

The appellant sought leave to appeal, arguing that the sentencing judge handled his rehabilitation circumstances incorrectly, applied sentencing guidelines too rigidly, and imposed a sentence identical to his co-offender despite meaningful differences between them.

  • Whether the custodial sentence should have been postponed to allow the appellant to complete a drug rehabilitation program
  • Whether remarks made by the sentencing judge during the hearing demonstrated bias in the form of pre-judgment
  • Whether the sentencing guidance from R v Henry & Ors (1999) 46 NSWLR 346 was applied inflexibly, without adequate regard to the appellant's individual circumstances
  • Whether the appellant's vulnerability to violence within the prison system (arising from his background and emotional immaturity) warranted a different sentence
  • Whether the imposition of an identical sentence to that of his co-offender, Mr King, gave rise to a justified sense of grievance on parity grounds

Decision

On the rehabilitation program and bias grounds, the Court found that the sentencing judge had plainly taken the Bridge program into account, including by backdating the sentence by two months in recognition of time spent on it. The suggestion that the judge's comments amounted to bias, in the sense of pre-judgment of an issue, was rejected. The sentencing judge's remarks reflected a legitimate assessment of the evidence rather than any impermissible antipathy or closed mind.

On the question of inflexible application of the Henry guidelines, the Court held that the sentencing judge had in fact considered the appellant's individual circumstances, including the preponderance of mitigating factors and the absence of a weapon. The guidance in Henry provides a framework, but the record did not support the contention that it had been applied as a rigid formula overriding personal considerations.

The vulnerability argument, based on the appellant's sheltered upbringing in India and late arrival in Australia, was treated as part of the broader complaint about inflexibility. The Court found no error in the sentencing judge's approach to those subjective circumstances.

On parity, the Court acknowledged that Mr King had a more extensive criminal record, but the sentencing judge had expressly found that the appellant played the more active and dominant role in the offence. Those factors balanced against one another and justified identical sentences. The Court concluded that no reasonable sense of grievance arose from that outcome.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • Participation in a drug rehabilitation program at the time of sentencing does not automatically warrant postponement of a custodial sentence; the sentencing court retains discretion and may give credit for program participation in other ways, such as backdating the sentence.
  • Strong words from a sentencing judge during a hearing do not establish bias unless they demonstrate actual pre-judgment of an issue, rather than a legitimate evaluative response to the evidence before the court.
  • Under the framework established in R v Henry & Ors, drug addiction is relevant to sentencing but is not of itself a mitigating factor; it informs the broader exercise of discretion.
  • A parity challenge cannot succeed simply because co-offenders receive identical sentences; where the sentencing court has expressly weighed differing criminal histories against differing roles in the offence, and arrived at the same result, no appellable error is established.
  • In dismissing the application, the Court of Criminal Appeal confirmed that the resulting sentence fell within an appropriate range and that no misunderstanding of principle or fact had been demonstrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A (aggravating and mitigating factors), 44 (special circumstances and non-parole periods)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (sentencing guidance for robbery offences)
- Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 (bias and pre-judgment)