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Court of Criminal Appeal 30 October 2007

Palmer v R

[2007] NSWCCA 308

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL APPEAL SENTENCE NO QUESTION OF PRINCIPLE

Citation: Palmer v R [2007] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 30 October 2007
Judge(s): Handley AJA, Hidden J, Hoeben J

Background

The appellant pleaded guilty to one count of robbery in company under section 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The sentencing judge in the District Court imposed a head sentence of four and a half years with a non-parole period of three years, reflecting a starting point of six years before the guilty plea discount. The offence involved planned criminal activity, and a third participant produced a knife during the robbery.

A co-offender, Simpson, was sentenced by a different District Court judge approximately five months later. Simpson had pleaded not guilty but cooperated with the prosecution, limiting the scope of the trial. He received a substantially lower sentence, with a starting point of around three years and four months, prompting the appellant to seek leave to appeal on parity grounds.

The appellant also challenged the sentencing judge's treatment of planning as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the disparity between the appellant's sentence and the co-offender's sentence established a breach of the parity principle, justifying appellate intervention.
  • Whether the sentencing judge wrongly treated the planned nature of the offence as an aggravating factor under section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, when the evidence only warranted rejecting a mitigating factor.

Decision

The Court of Criminal Appeal rejected the parity ground. While the disparity between the two sentences was admittedly marked, the Court found it was justified by meaningful differences in the two offenders' circumstances. Simpson withdrew from the scene when the knife appeared and waited outside, which the co-offender's sentencing judge regarded as significantly reducing his culpability. By contrast, the appellant was on a bond and on conditional liberty at the time of the offence, which has consistently been treated as a serious aggravating factor in sentencing.

Hidden J noted that the co-offender's sentencing judge had mistakenly proceeded on the basis that the appellant's sentencing judge found the appellant knew the knife would be used. In fact, no such finding was made. Even accounting for that misapprehension, the Court was satisfied that it was open to the co-offender's judge to take a considerably more favourable view of Simpson's culpability. The Court was not persuaded that the appellant had a legitimate sense of grievance, and rejected the parity ground.

On the second ground, the Court examined whether the sentencing judge had impermissibly elevated the element of planning from a rejected mitigating factor into a positive aggravating factor. The sentencing judge had expressly stated he was not satisfied the offence lacked planning or premeditation, in response to a submission that spontaneity was a mitigating factor. Reading the remarks on sentence as a whole, the Court concluded the judge was doing no more than rejecting one aspect of the mitigation case rather than finding an aggravating circumstance that attracted a higher sentence. The second ground also failed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A marked disparity between co-offenders' sentences does not automatically establish a breach of the parity principle where the differences in culpability and personal circumstances provide a rational justification for the gap.
  • The Court of Criminal Appeal confirmed that being on conditional liberty (such as a bond) at the time of an offence has consistently been treated as a serious aggravating factor in sentencing.
  • Where a sentencing judge rejects a defence submission that an offence was spontaneous, that rejection does not necessarily constitute a finding that planning operated as a positive aggravating factor under section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. The distinction between rejecting a mitigating factor and finding an aggravating one is material.
  • A misapprehension by one sentencing judge about what a co-offender's sentencing judge found does not automatically render the resulting disparity a legitimate grievance, provided the outcome can otherwise be justified on the facts before that judge.
  • In dismissing the appeal, the Court did not disturb the starting point of six years adopted before the guilty plea discount, notwithstanding the appellant's argument that it exceeded the range indicated in R v Henry (1999) 46 NSWLR 346.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n) (aggravating factors: planned or organised criminal activity)

Cases:
- R v Henry (1999) 46 NSWLR 346 (sentencing guideline judgment for robbery offences)