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35
Court of Criminal Appeal 13 December 2006

Tatana v Regina

[2006] NSWCCA 398

Theft & property
CRIMINAL LAW SENTENCING PARITY PAROLE PERIOD.

Citation: Tatana v Regina [2006] NSWCCA 398
Court: NSW Court of Criminal Appeal
Date: 13 December 2006
Judge(s): Sully J, Howie J, Latham J

Background

The applicant was one of several co-offenders involved in a scheme to steal a shipping container holding approximately 1,490 DVD players valued at close to $1 million. Police had lawfully intercepted telephone calls over several weeks and arrested the group when the theft was carried out in October 2002. The applicant played a central organisational role, having approached a contact to arrange the theft and supplied a stolen delivery order to enable it.

Due to procedural complications, including an initial guilty plea that was later withdrawn in the District Court, the applicant was sentenced separately from his co-offenders. Acting Judge Boulton sentenced him in November 2005, roughly a year after Judge Berman had sentenced the other participants. The applicant received a total term of 3 years and 4 months with a non-parole period of 2 years and 6 months.

The applicant sought leave to appeal, arguing among other grounds that his sentence produced an unjustifiable disparity with those of his co-offenders, particularly because, despite being sentenced for significantly less overall criminality, he would spend longer in custody.

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his non-parole period and those of his co-offenders
  • Whether the sentencing judge erred by failing to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the need to preserve parity with co-offenders can itself constitute "special circumstances" justifying a reduction in the non-parole period

Decision

The Court of Criminal Appeal found that the applicant did have a justifiable sense of grievance. His co-offenders had each been sentenced for additional offences (including an earlier theft of mobile telephones), and Judge Berman had found special circumstances for each of them, reducing their individual non-parole periods to account for the cumulative structure of their sentences. The applicant, sentenced only for the DVD players larceny, faced a longer time in custody despite being sentenced for less total criminality.

The Court confirmed that special circumstances for the purposes of s 44 are not confined to subjective factors personal to the offender. They can extend to situations where cumulative sentencing warrants adjustment to preserve an appropriate ratio between the head sentence and the non-parole period. The Court held, crucially, that the need to preserve proper parity between co-offenders can itself amount to special circumstances in an appropriate case.

Howie J, with whom Sully J and Latham J agreed, emphasised that this was an exceptional case. The Court was careful to note that disparity does not generally arise merely because the mechanical application of s 44 produces different outcomes for different co-offenders. However, where the result is that an offender would serve longer in custody despite facing materially less criminality, the sentencing court ought to have found special circumstances and reduced the non-parole period accordingly.

Acting Judge Boulton's failure to consider parity as a basis for finding special circumstances was therefore an error, and the non-parole period was reduced accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in respect of the non-parole period
  • The non-parole period imposed by Acting Judge Boulton quashed
  • A new non-parole period of 1 year and 9 months substituted, commencing 28 October 2005 and expiring 27 July 2007

Key Takeaways

  • The Court of Criminal Appeal held that "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 are not limited to subjective factors personal to the offender; they can encompass structural sentencing considerations and, in appropriate cases, the need to preserve parity with co-offenders.
  • A justifiable sense of grievance arises where an offender who faces less overall criminality than co-offenders will nonetheless spend longer in custody as a result of how the standard non-parole period provisions are applied.
  • The principle that parity can ground a finding of special circumstances is narrow and fact-specific. The Court stressed this will not generally apply merely because s 44 produces arithmetically different outcomes across co-offenders.
  • Where a sentencing court confronts this kind of exceptional disparity, the proper course is to find special circumstances and adjust the non-parole period, rather than apply s 44 mechanically in a way that produces manifest unfairness.
  • Sentences imposed on co-offenders who were charged with materially different or additional offences, such as the offender Henare and the receiving charge against August, are not always a useful comparison point in a parity analysis and may be properly disregarded.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(3)(h), 44

Cases
- R v Araya [2005] NSWCCA 283
- R v Singh [2001] NSWCCA 424
- R v Do [2005] NSWCCA 209
- Pearce v The Queen (1998) 194 CLR 610