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Court of Criminal Appeal 20 April 2007

ROBERTS v REGINA

[2007] NSWCCA 112

Assault & violenceTheft & property
CRIMINAL LAW APPEAL PARITY IN SENTENCING JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Roberts v Regina [2007] NSWCCA 112
Court: New South Wales Court of Criminal Appeal
Date: 20 April 2007
Judge(s): Barr J; Adams J; Rothman J

Background

The appellant pleaded guilty in the Local Court to two counts of aggravated detention for advantage in company and four counts of robbery in company, each carrying a maximum penalty of 20 years' imprisonment. The offences arose from a prolonged and serious incident in which two victims were detained in their van, driven to multiple locations, robbed at ATM machines, and subjected to threats and degrading conduct over an extended period.

The District Court sentenced the appellant, together with his co-offender, on 10 February 2006. For the four robbery counts, the appellant received fixed terms of three years commencing 15 December 2004. For the two detention counts, he received a non-parole period of three years and nine months from 15 December 2005, with a balance of two years, expiring 14 September 2011.

The appellant sought leave to appeal, contending that the sentence produced an unjustifiable disparity with the sentence imposed on his co-offender and that the sentencing judge made an error in calculating special circumstances.

  • Whether an arithmetic or structural error occurred in the sentencing judge's calculation of the non-parole period in the context of special circumstances
  • Whether the disparity between the appellant's sentence and that of his co-offender gave rise to a justifiable sense of grievance warranting intervention
  • Whether the impact of the appellant's imprisonment on a third party (his child) could constitute a special circumstance justifying an adjusted ratio between the non-parole period and the balance of term

Decision

The Court of Criminal Appeal found that the sentencing judge's calculation produced an inconsistency that required correction. When the non-parole period imposed on the appellant was compared with that imposed on the co-offender, the result gave rise to a justifiable sense of grievance, engaging the principle of parity in sentencing as articulated in Lowe v The Queen and Postiglione v The Queen.

On the question of third-party hardship, the Court confirmed that the impact of imprisonment on persons other than the offender can only exceptionally operate to reduce a sentence. Such circumstances must remain rare, given the need for sentencing courts to give effect to the penalties Parliament has prescribed. Where a person has significant caring responsibilities, the Court observed that those responsibilities should ideally inform the decision whether to offend rather than operate to diminish the penalty after the fact.

However, the Court accepted that third-party hardship may more readily be taken into account in adjusting the ratio between the non-parole period and the balance of term, rather than in reducing the overall sentence. This approach was seen as consistent with the purpose of parole: the offender's own conduct in custody would determine whether earlier release to care for the child was achieved, while community supervision remained in place throughout the balance of term.

Taking these principles together, the Court exercised its own sentencing discretion, adjusting the non-parole period for the two detention offences downward to two years and eleven months. The appellant's child was treated as a factor relevant to special circumstances, allowing for a longer balance of term.

Orders Made

  • Leave to appeal granted; appeal granted in part
  • The sentences imposed for the two counts of aggravated detention for advantage were quashed
  • In their place, the appellant was sentenced on each detention count to imprisonment comprising a non-parole period of two years and eleven months, commencing 15 December 2005 and expiring 14 November 2008, with a balance of term of two years and ten months expiring 14 September 2011
  • The appellant's first eligibility for parole was set at 14 November 2008

Key Takeaways

  • A justifiable sense of grievance arising from disparity between co-offenders' sentences can warrant appellate intervention, even where the sentence imposed is not otherwise excessive in isolation.
  • Third-party hardship (such as the impact of imprisonment on a dependent child) will only in exceptional cases operate to reduce the length of a sentence, given the primacy of Parliament's prescribed penalties.
  • Such hardship may nonetheless be recognised as a special circumstance, adjusting the proportion between the non-parole period and the balance of term rather than reducing the head sentence itself.
  • Under this approach, the outcome for any third party depends on the offender's own rehabilitative conduct, since it is that conduct which will determine whether parole is granted and the offender returns to care for the dependent person.
  • In correcting a sentencing error arising from inconsistent treatment of co-offenders, the Court of Criminal Appeal will exercise its own discretion afresh, applying parity principles while otherwise preserving the sentencing judge's findings on subjective and objective factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Douglass [2001] NSWCCA 250
- R v Edwards (1996) 90 A Crim R 501
- R v Wirth (1976) 14 SASR 291