Citation: Hudson v Regina [2007] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 5 November 2007
Judges: Mason P, Hidden J, Harrison J
Background
The applicant was convicted after a jury trial in the District Court of four counts of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900, which carries a maximum of 25 years imprisonment. All four charges arose from a single incident late at night in March 2005, when the applicant and a co-offender confronted four young people in a parked car near Shelley Beach on the Central Coast, threatening them with a replica pistol and demanding their wallets.
At sentencing, the District Court imposed six years imprisonment on each count, with a non-parole period of three years, and applied partial accumulation to produce an aggregate sentence of six years and nine months with an effective non-parole period of three years and nine months.
The applicant's co-offender, who had pleaded guilty to the same four charges and been sentenced separately, received an aggregate sentence of four and a half years with a non-parole period of two years and nine months. The applicant sought leave to appeal on the basis that the disparity between the two sentences was unjustifiable.
Legal Issues
- Whether the sentencing judge erred by failing to determine an individually differentiated sentence for each count, as required by Pearce v The Queen (1998) 194 CLR 610, given that one count attracted an aggravating factor (substantial emotional harm to the victim) that the other three did not.
- Whether the disparity between the sentences imposed on the applicant and those imposed on his co-offender was unjustifiable, giving the applicant a legitimate sense of grievance under the principles in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295.
Decision
On the first ground, Hidden J noted that while the sentencing judge found an aggravating factor (substantial emotional harm) applied to one count but not the others, this did not necessarily require that count to carry a heavier sentence. All four offences arose in the same incident and were equally serious, and the emotional impact on victims was only one of several relevant factors. The Court found it unnecessary to reach a concluded view on this ground, as the second ground was sufficient to warrant intervention.
On the disparity ground, the Court accepted that the sentencing judge had identified differences between the two offenders' subjective circumstances, including the co-offender's youth and his guilty pleas, which attracted a 25 percent discount. However, the co-offender also had a significantly worse criminal record, including prior convictions for assault and property offences, and was subject to a good behaviour bond and a community service order at the time of the robberies. The applicant, by contrast, had only minor driving convictions and was facing his first custodial sentence.
The Court held that, once the guilty plea discount and the co-offender's more serious prior history were properly weighed, no adequate justification remained for the substantial disparity between the two sentences. The applicant's head sentence on each count exceeded the co-offender's by two years, and his effective non-parole period exceeded it by a full year. The Court found the applicant had a justifiable sense of grievance and that intervention was warranted.
On resentencing, the Court adopted the original findings of special circumstances and maintained the partial accumulation approach. Additional affidavit material attesting to the applicant's positive prison conduct, family relationships, and participation in vocational and rehabilitation programmes was also taken into account.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentences passed in the District Court quashed.
- The applicant sentenced on each count to five years imprisonment, comprising a non-parole period of two and a half years and a balance of term of two and a half years.
- Sentences partially accumulated, producing an overall sentence of five years and nine months with an effective non-parole period of three years and three months.
- The applicant eligible for release on parole on 14 August 2009.
Key Takeaways
- A significant sentencing disparity between co-offenders of equal culpability can constitute a justifiable sense of grievance warranting appellate correction, even where some differences in subjective circumstances exist between the offenders.
- The Court of Criminal Appeal confirmed that a co-offender's more serious prior criminal history can outweigh the sentencing advantage that offender gained from a guilty plea discount, narrowing the justifiable gap between the two sentences.
- Under the disparity principles from Lowe and Postiglione, the relevant question is whether the difference in sentences is explicable by legitimate sentencing factors. Where it is not, the appellate court will intervene.
- The fact that one count in a multi-count proceeding attracted an aggravating factor not present in the others does not automatically require a heavier individual sentence for that count, particularly where all counts arose from the same incident and shared the same circumstances.
- Positive post-sentence conduct, including participation in rehabilitation programmes and employment while in custody, is material the Court may receive and consider on resentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2) (robbery while armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) (aggravating factor: substantial emotional harm) and s 21A(3)(a) (mitigating factor: harm not substantial)
Cases
- R v Henry (1999) 46 NSWLR 346
- Pearce v The Queen (1998) 194 CLR 610
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996-97) 189 CLR 295
- R v Kelly (2005) 155 A Crim R 499
- R v Kollas & Mitchell [2002] NSWCCA 491