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Court of Criminal Appeal 19 June 2007

Ersman v Regina

[2007] NSWCCA 161

Also reported as 171 A Crim R 560
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY WITH OFFENSIVE WEAPON LONG STANDING DEFICIENCIES SENTENCE MANIFESTLY EXCESSIVE PARITY

Citation: Ersman v Regina [2007] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 19 June 2007
Judges: McClellan CJ at CL, Hislop J, Smart AJ

Background

The appellant was 19 years old at the time of the offence and pleaded guilty to robbery whilst armed with an offensive weapon under s 97(1) of the Crimes Act 1900. The offence involved three people who, late at night at Warwick Farm Railway Station, confronted a 44-year-old woman returning from a nursing shift, threatened her with a knife, snatched her backpack, and attempted to steal her mobile phone. One of the co-offenders struck the victim on the back of the head as the group left. The offenders were later captured on bank CCTV attempting to withdraw money from the victim's account.

Two co-offenders were juveniles and were dealt with separately in the Children's Court. The appellant, by contrast, was sentenced in the District Court by Maguire DCJ to a total term of six years imprisonment, with a non-parole period of three years commencing 12 January 2006. The appellant sought leave to appeal against that sentence.

The appellant had significant personal disadvantages, including intellectual and academic limitations, a chaotic upbringing, long-standing alcohol and drug abuse from the age of 14, and a psychological assessment finding him to function on a day-to-day basis at a borderline disabled level. He had an extensive criminal history, including prior robbery offences dealt with in the Children's Court.

  • Whether the sentence of six years (three years non-parole) was manifestly excessive given the appellant's significant cognitive and personal limitations
  • Whether the principle of parity required the sentence to bear due proportion and relativity to those imposed on the co-offenders in the Children's Court
  • Whether special circumstances existed justifying a longer-than-usual balance of term to allow for extended supervision on release

Decision

The Court accepted that the offence was serious. The victim was threatened with a knife at night in an isolated location, subjected to sustained demands, and physically struck. The maximum penalty was 20 years. The Court acknowledged that a substantial sentence was required.

However, the Court found the sentence manifestly excessive when the appellant's circumstances were properly weighed. His borderline intellectual disability, severely dysfunctional background, long-standing drug and alcohol dependence, and limited capacity for insight and judgment were longstanding deficiencies rather than mere mitigating factors, and the sentencing court had not given them adequate weight.

The parity principle also supported intervention. The two juvenile co-offenders received notably lenient outcomes in the Children's Court: one received a control order of 12 months with a two-month non-parole period, and the other a suspended control order of seven months. The Court acknowledged the Children's Court sentencing regime differs from the District Court and that the co-offenders' youth and subjective circumstances warranted a degree of divergence. Even making generous allowances for those differences, however, the Court concluded there was a lack of due proportion between the sentences imposed on the co-offenders and that imposed on the appellant.

The Court found special circumstances existed because of the appellant's limitations. An extended balance of term was warranted to allow for supervision, drug and alcohol treatment, and preparation for employment over a longer period than would ordinarily apply.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; original sentence quashed
  • The appellant re-sentenced to imprisonment comprising a non-parole period of 2 years 6 months commencing 12 January 2006 and expiring 11 July 2008, and a balance of term of 2 years 6 months commencing 12 July 2008 and expiring 11 January 2011
  • Eligible for release on parole on 12 July 2008

Key Takeaways

  • Significant intellectual limitations, cognitive disadvantage, and longstanding personal dysfunction are relevant to the weight of a sentence, even where the offence is objectively serious.
  • The parity principle requires that sentences for co-offenders in the same criminal enterprise bear due proportion and relativity to one another, even where the co-offenders were sentenced under a different regime (such as the Children's Court), provided the divergence is not adequately explained by legitimate sentencing differences.
  • Where a Children's Court sentence is itself found to be inadequate, that does not prevent a court from reducing an adult co-offender's sentence on parity grounds, but the adult sentence must still reflect the objective and subjective criminality of the offending.
  • Special circumstances justifying an extended balance of term can arise where an offender's disabilities and rehabilitation needs require a longer period of supervised parole than the standard proportion would allow.
  • In re-sentencing, the Court of Criminal Appeal took into account post-sentence conduct, including the appellant's minimum security classification, enrolment in vocational courses, and steps taken to address drug and alcohol problems while in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed with an offensive weapon)
- Children (Criminal Proceedings) Act (NSW)

Cases:
- Broad (unreported, NSWCCA, 13 March 1984)
- R v Henry (1999) 46 NSWLR
- Lowe v The Queen (1984) 154 CLR
- Postiglione v The Queen (1997) 189 CLR
- R v Boney [2001] NSWCCA 432
- R v Coghlan [1999] NSWCCA 292
- R v Diamond (NSWCCA, 18 February 1993)
- R v Govinden 106 A Crim R