Citation: AB v Regina [2007] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 10 May 2007
Judges: Campbell JA, James J, Smart AJ
Background
The appellant, a juvenile offender aged 16 and a half at the time of the offences, sought leave to appeal against sentences imposed in the District Court for discharging a firearm in a public place and affray. The offences arose from a confrontation in a residential street in Casula on 3 July 2005, in which a group of males surrounded a victim in his car. The appellant had found a loaded rifle in the vehicle in which he was travelling, secreted it in his clothing, and discharged it in the direction of nearby houses approximately 10 to 15 metres from the victim before pointing it at him.
During the same incident, a co-offender, Pou, used a knife to stab the victim three times in the back and arm, causing wounds that required emergency hospitalisation and surgical treatment. Both offenders were sentenced by Maguire DCJ in the District Court on the same occasion. The appellant received a non-parole period of six months with a balance of term of 12 months for the firearm offence, and a concurrent fixed term of six months for affray.
The appellant argued on appeal that his sentences were disproportionate when compared to those received by Pou, whose sentence for wounding in company was structured identically despite the appellant's more favourable subjective features, including his youth, genuine contrition, and a higher guilty plea discount.
Legal Issues
- Whether the sentences imposed on the appellant were marked by a disparity or lack of due proportion compared to those imposed on his co-offender Pou, giving rise to a justifiable sense of grievance
- Whether parity principles apply with full force where co-offenders have been dealt with on significantly different charges
- Whether the sentencing judge properly exercised the sentencing discretion in imposing a term of full-time imprisonment on a juvenile offender with no significant criminal history
Decision
The Court of Criminal Appeal accepted that the parity principle requires not merely formal equality but due proportion, assessed by reference to the differing circumstances and criminality of co-offenders. Citing Postiglione v The Queen, Smart AJ confirmed that any discrepancy must be marked and must give rise to a justifiable sense of grievance before an appellate court will intervene.
The Court noted a further complication: the co-offenders had been charged with materially different offences, namely wounding in company for Pou and discharging a firearm in a public place for the appellant. Citing R v Watson, Smart AJ observed that parity considerations are difficult to apply where co-offenders have been dealt with on significantly different charges. Both offences carried the same maximum penalty of 10 years, but their nature and the relevant conduct differed considerably.
The Court found that a sentence of full-time imprisonment was plainly open on the facts. The appellant had deliberately loaded and discharged a firearm in a public street in the presence of a group hostile to the victim, conduct the Court characterised as serious regardless of his asserted intention to frighten rather than injure. The sentences imposed were described as moderate in the circumstances. While the appellant's subjective features, including his age, contrition, and guilty plea discount, were more favourable than Pou's, those differences did not produce a disparity so marked as to warrant intervention.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A discrepancy in sentencing between co-offenders must be marked and must give rise to a justifiable sense of grievance before an appellate court will intervene; mere difference in outcome is insufficient.
- Parity principles are difficult to apply with precision where co-offenders have been sentenced on the basis of significantly different charges, even where those charges carry the same maximum penalty.
- Full-time imprisonment was held appropriate for a juvenile offender who had no significant criminal history but had deliberately discharged a firearm in a public place during a group confrontation; the seriousness of the offence outweighed otherwise favourable subjective features.
- In dismissing the appeal, the Court of Criminal Appeal declined to resolve whether the offences charged across co-offenders must be substantially identical for parity principles to apply, leaving that question open.
- Differences in contrition, guilty plea discounts, and age between co-offenders are relevant to the parity analysis but will not necessarily produce a finding of marked disparity justifying resentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93G(1) (discharging a firearm in a public place, maximum 10 years)
- Crimes Act 1900 (NSW), s 93C(1) (affray, maximum 10 years)
Cases
- Postiglione v The Queen (1996-1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606 (referenced in discussion of parity principles)
- R v Watson, 25 February 1992, NSW Court of Criminal Appeal (unreported)
- R v Wurramarbra (1979) 1 ACR 291 (cited within R v Watson)