Citation: Rend v Regina [2006] NSWCCA 41
Court: New South Wales Court of Criminal Appeal
Date: 14 March 2006
Judges: James J, Buddin J, Hall J
Background
The appellant was tried in the District Court before Judge Nield and a jury on charges arising from events on 1 September 2003 in Newtown. The Crown alleged she acted with a male co-offender, Wormleaton, in committing a robbery at knifepoint on a pedestrian who was robbed of ten dollars. The jury acquitted her of armed robbery but convicted her of robbery.
The appellant had earlier pleaded guilty to armed robbery but was granted leave to withdraw that plea before trial. At trial, her former co-offender Wormleaton gave evidence for the Crown, describing how the pair had stolen a car, driven into the city looking for a victim, and how the appellant drove the vehicle while Wormleaton committed the robbery on foot.
Judge Nield sentenced the appellant to a total of four years imprisonment with a two-year non-parole period. Wormleaton, who had pleaded guilty to the more serious charge of armed robbery and provided assistance, received a lesser effective sentence. The appellant challenged both her conviction and her sentence.
Legal Issues
- Whether the Crown prosecutor's closing address improperly relied on alleged lies by the appellant as evidence of guilt, causing a miscarriage of justice
- Whether the trial judge failed to properly direct the jury on how to use alleged lies told by the appellant (commonly called a "Zoneff direction," after the High Court's guidance on using lies as evidence of consciousness of guilt)
- Whether the trial judge erred in permitting the Crown to call reply evidence
- Whether the sentencing judge erred by treating prior convictions and the fact that the offence was committed in company as aggravating factors
- Whether the disparity between the appellant's sentence and Wormleaton's lesser sentence gave rise to a justifiable sense of grievance warranting resentencing
Decision
Conviction appeal dismissed. The Court examined the Crown prosecutor's address and the trial judge's directions to the jury regarding lies allegedly told by the appellant. While the Court scrutinised whether adequate "Zoneff directions" had been given, it ultimately found that no miscarriage of justice had been occasioned. The challenge to the admission of reply evidence was also rejected.
Sentence appeal allowed. The Court accepted the argument based on Postiglione v The Queen, which establishes that a significant and unjustifiable disparity between co-offenders' sentences can itself warrant appellate intervention. Wormleaton had been convicted of the more serious offence of armed robbery, had taken the leading role in planning and carrying out the robbery, and was on bail and subject to a bond at the time. Despite all of this, his effective sentence was lower than the appellant's. The Court found this produced a justifiable sense of grievance on the appellant's part.
Having found the disparity ground made out, the Court did not need to resolve the remaining sentencing grounds. The Court identified special circumstances arising from the appellant's need for drug treatment and counselling, maintaining the same ratio between the non-parole period and the balance of term as the original sentence, but reducing the overall sentence to three years.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- Sentence of four years (non-parole period of two years) imposed for robbery quashed
- Appellant resentenced to a total of three years imprisonment, comprising a non-parole period of one year and six months and a balance of term of one year and six months, dating from 25 January 2005
- Appellant directed to be released on parole at the end of the non-parole period on 24 July 2006
- Sentence for the related charge of driving while disqualified, and the disqualification order, confirmed
Key Takeaways
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In dismissing the conviction appeal, the Court of Criminal Appeal applied the framework from Zoneff v The Queen (2000) 200 CLR 234, which governs when and how juries may use an accused's lies as evidence of a consciousness of guilt, and found no miscarriage of justice on the facts.
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A significant sentencing disparity between co-offenders can ground a successful appeal even where the co-offender received a lesser sentence for a more serious offence, provided the disparity is not adequately explained by legitimate factors such as pleas of guilty and assistance to authorities.
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Under the principle in Postiglione v The Queen (1995-1996) 189 CLR 295, the relevant question is not simply whether sentences differ, but whether the difference gives rise to a justifiable sense of grievance in the mind of the offender receiving the heavier penalty.
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Where one co-offender took the leading role in planning and executing the offence, was subject to bail and a bond at the time, and was sentenced for a more serious charge, those factors weigh against the lesser-sentenced party successfully invoking disparity. However, the calculation must still account for the overall outcome.
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Special circumstances in sentencing (which allow a court to depart from the standard ratio between non-parole period and total sentence) were found to exist here because of the appellant's demonstrated need for drug treatment and rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Appeal Act (NSW)
- Evidence Act (NSW)
Cases:
- Zoneff v The Queen (2000) 200 CLR 234
- Postiglione v The Queen (1995-1996) 189 CLR 295
- Edwards v The Queen (1993) 178 CLR 193
- The Queen v Chin (1984-1985) 157 CLR 671
- R v De Simoni (1981) 147 CLR 383
- MWJ v The Queen [2005] HCA 74
- Weiss v The Queen [2005] HCA 81
- R v Blair (2005) 152 A Crim R 462
- R v Douglas [2005] NSWCCA 419
- R v Johnson [2004] NSWCCA 76
- R v Tangye (1997) 92 A Crim R 545
- Browne v Dunn (1893) 6 R 67