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Court of Criminal Appeal 4 July 2007

Lewins v R

[2007] NSWCCA 189

Also reported as (2007) 175 A Crim R 40
Theft & property
CRIMINAL LAW APPEAL DISPARITY WITH SENTENCE OF CO OFFENDER THAT WAS MANIFESTLY INADEQUATE ELLIS DISCOUNT MISAPPLIED

Citation: Lewins v R [2007] NSWCCA 189
Court: New South Wales Court of Criminal Appeal
Date: 4 July 2007
Judges: Basten JA, Grove J, Howie J

Background

The appellant was a professional burglar sentenced in the District Court in June 2006 for four counts of breaking, entering, and stealing from commercial premises in the Hunter Region during 2002 and 2004. He also asked the court to take into account 44 additional matters on a Form 1, encompassing break-and-enter offences, break-and-enter with intent, and motor vehicle larcenies. The total monetary value of his offending exceeded $300,000. The sentencing judge imposed an aggregate term of 10 years with a non-parole period of 7 years.

The appellant's co-offender, Woolhouse, appeared before the same judge in October 2006 for the same four offences, plus 68 additional Form 1 matters, a worse criminal record, additional aggravating features, and a monetary loss exceeding $400,000. Despite this greater criminality, Woolhouse received sentences totalling only 3 years with a non-parole period of 18 months. That lighter sentence was largely attributable to Woolhouse having assisted police, including by recording conversations with the appellant that led to the appellant's admissions.

On appeal, the appellant did not challenge his own sentence as excessive. Instead, he argued that the extraordinary gap between his sentence and Woolhouse's created a justifiable sense of injustice warranting the Court of Criminal Appeal's intervention on the ground of parity.

  • Whether the disparity between the appellant's and Woolhouse's sentences was sufficiently gross to warrant appellate intervention on parity grounds.
  • Whether the sentencing judge misapplied the principle from R v Ellis (1986) 6 NSWLR 603, which recognises a discount for an offender who assists police, in a way that produced a disproportionate result.
  • Whether the discount granted to Woolhouse breached the statutory restriction in s 23(3) of the Crimes (Sentencing Procedure) Act 1999, which prohibits a court from imposing a sentence "disproportionate to the nature and circumstances of the offence" in exchange for assistance to authorities.
  • Whether, given that Woolhouse's sentence was manifestly inadequate, the Court should nonetheless reduce the appellant's sentence or decline to do so because the co-offender's sentence was too flawed to serve as a legitimate comparator.

Decision

The Court accepted that Woolhouse's sentence was manifestly inadequate and described it as "an affront" to the victims. The sentencing judge had granted Woolhouse discounts for his assistance to police without acknowledging or applying the s 23(3) restriction against disproportionate reductions. The Ellis discount had also been misapplied. These errors produced a sentence for Woolhouse that, on its face, could not be justified on any principled basis.

The Court acknowledged the established principle that a co-offender's sentence may be so inadequate that the resulting sense of grievance can no longer be regarded as a legitimate one, and that in such cases the Court need not intervene. However, Howie J, with whom Basten JA and Grove J agreed, concluded that this was not such a case. The disparity was so extreme that the appellant was facing a period to parole eligibility approximately six and a half years longer than Woolhouse's, despite having been sentenced for less overall criminality.

In resentencing, Howie J was careful to note that the revised sentence was not derived mathematically from Woolhouse's sentence, nor from any notional starting point reduced by a fixed percentage. The Court reduced the aggregate term from 10 years (non-parole period 7 years) to 8 years with a non-parole period of 5 years and 6 months, to relieve what the Court characterised as a "justifiable grievance" to a "small but significant degree." Special circumstances were found to exist, primarily to bring the non-parole period closer to parity and to account for the partly cumulative structure of the sentences.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Sentences imposed in the District Court quashed and the following substituted:
  • Count 1: 18 months fixed term, commencing 10 April 2006, expiring 9 October 2007.
  • Count 2 (and Form 1 matters): 6 years imprisonment with a non-parole period of 4 years 6 months, commencing 10 April 2006, non-parole period expiring 9 October 2010.
  • Count 3: 3 years 6 months imprisonment with a non-parole period of 12 months, commencing 10 October 2010, non-parole period expiring 9 October 2011.
  • Count 4: 12 months fixed term, commencing 10 October 2010, expiring 9 October 2011.

Key Takeaways

  • A co-offender's manifestly inadequate sentence does not automatically preclude a parity-based appeal. Even where the co-offender's sentence is grossly inadequate, a court retains discretion to intervene if the resulting disparity is so extreme that the appellant's sense of grievance remains legitimate.
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, a discount granted for assistance to police must not produce a sentence disproportionate to the nature and circumstances of the offence. Failure to engage with this statutory constraint was identified as error in the co-offender's sentencing.
  • The Ellis discount for assistance to police, while a recognised sentencing consideration, must be applied within principled limits. An excessive discount that produces a sentence bearing no reasonable relationship to the offending undermines the integrity of the sentencing process.
  • In resentencing on parity grounds, the Court of Criminal Appeal did not treat the co-offender's sentence as a mathematical baseline. The revised sentence was calibrated to reduce the appellant's justifiable grievance to a meaningful degree, without simply mirroring the disproportionate result below.
  • Where an aggregate sentence contains partly cumulative terms, special circumstances may be found to justify a non-parole period below the standard proportion, particularly to achieve an appropriate level of parity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 23(3)

Cases:
- R v Pan [2005] NSWCCA 114
- R v Ellis (1986) 6 NSWLR 603
- R v Dodd (1991) 57 A Crim R 349
- Ryan v The Queen (2001) 206 CLR 267
- SZ v R [2007] NSWCCA 19
- R v Todd [1982] 2 NSWLR 517
- Chang v R [2006] NSWCCA 409
- Postiglione v The Queen (1997) 189 CLR 295
- R v Grube [2005] NSWCCA 140
- Tatana v R [2006] NSWCCA 398