Citation: Steven Gregory Browne v Regina [2006] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 14 March 2006
Judge(s): Sully J; Latham J
Background
The appellant pleaded guilty in the Local Court to one count of robbery and three counts of robbery in company, and was committed to the District Court for sentencing. He also asked the sentencing judge to take into account a further robbery in company offence. The offences involved a series of robberies on trains in western Sydney in 2004, targeting passengers who were threatened and, in some instances, physically assaulted.
Judge Knight of the District Court sentenced the appellant to an overall head term of six years, comprising a non-parole period of three and a half years and a balance of term of two and a half years. The individual sentences were structured as partly cumulative and partly concurrent.
The appellant sought leave to appeal against sentence on a single ground: that his sentence was disproportionately harsh compared with the sentences imposed on two co-offenders, Matthew Jones and Samantha Fratus, giving rise to a justifiable sense of grievance under the parity principle.
Legal Issues
- Whether the disparity between the appellant's sentence and those imposed on co-offenders Jones and Fratus gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention under the parity principle.
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Sully J, with whom Latham J agreed, examined the sentences imposed on each of the co-offenders and found that a meaningful parity comparison was impossible on the facts.
Fratus was a young offender dealt with in the Children's Court, where her involvement was characterised as significantly less than the appellant's. She received sixty hours of community service and a twelve-month probation order, without conviction. The sentencing Magistrate noted she had been intoxicated and that her participation was limited. Sully J concluded that attempting to draw a parity comparison between her sentence and the appellant's was, in his words, "to attempt the equation of chalk with cheese."
Jones was also dealt with separately, and the respective circumstances of each co-offender were found to be materially different from those of the appellant. The Court found no reasonable basis upon which the appellant could sustain a justifiable sense of grievance arising from those comparisons.
Without a valid parity point established, the Court found no cause for appellate intervention and dismissed the appeal.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- The parity principle in sentencing requires that co-offenders be genuinely comparable before a disparity in sentences can give rise to a justifiable sense of grievance; differences in age, culpability, jurisdiction, and individual circumstances can render a comparison meaningless.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a co-offender dealt with in the Children's Court under a separate legislative framework, with markedly lesser involvement, does not provide a valid basis for a parity challenge by an adult offender sentenced in the District Court.
- Where an appellant relies solely on a parity ground and that ground fails, no independent basis for appellate intervention in the sentence arises.
- Robbery under s 94 of the Crimes Act 1900 (NSW) carries a maximum of 14 years imprisonment; robbery in company under s 97(1) carries a maximum of 20 years, reflecting the heightened seriousness the legislature attaches to group offending.
- Partial concurrency and partial cumulativity in structuring multiple sentences is an accepted technique for reflecting the totality of an offender's criminality, as illustrated by the overall six-year head sentence imposed across five separate offences here.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 94 (robbery), 97(1) (robbery in company)
Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997)
- Reg v Diamond (unreported, NSWCCA, 18 February 1993)
- Reg v Chen & ors [2002] NSWCCA 447