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Court of Criminal Appeal 22 March 2007

Spinks v R

[2007] NSWCCA 52

Theft & property
SENTENCE PARITY FORM 1 OFFENCES

Citation: Spinks v R [2007] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 22 March 2007
Judge(s): Sully J, Bell J, Hoeben J

Background

The applicant had been sentenced in the District Court in August 2004 after pleading guilty to four counts of aggravated armed robbery, with a number of further offences taken into account on two Form 1 documents (a procedural mechanism allowing a sentencing court to factor in additional admitted offences without recording further convictions). He received an aggregate sentence of 15 years' imprisonment with a non-parole period of eight years and nine months. His first application for leave to appeal against severity was refused by the Court of Criminal Appeal in December 2005.

Several of the applicant's offences were committed jointly with a co-offender, Lea-Caton, who was sentenced separately in December 2005. Lea-Caton received an aggregate sentence of 10 years' imprisonment with an effective non-parole period of six years, covering two counts of aggravated armed robbery on indictment and four further offences on Form 1 documents.

The applicant then brought a further application for leave to appeal, arguing that Lea-Caton's significantly lighter sentence created a disparity that gave rise to a justifiable sense of grievance and required the Court to intervene and reduce the applicant's sentences.

  • Whether the difference between the applicant's sentence and Lea-Caton's sentence constituted the kind of marked disparity that, under the parity principle, required the Court to intervene and reduce the applicant's sentence.
  • Whether the parity principle operated to justify a reduction even where both sentences had previously been found to be appropriate exercises of sentencing discretion.

Decision

Bell J (with whom Sully J and Hoeben J agreed) acknowledged the parity principle as recognised in Postiglione v R and earlier High Court authority: equal justice requires that co-offenders should not face a marked disparity in sentence that gives rise to a justifiable sense of grievance, and if such a disparity exists, the higher sentence should be reduced even if it is otherwise within the permissible range.

However, the Court found the sentences were not truly comparable on their face. The applicant stood for sentence on four counts of aggravated armed robbery on indictment, whereas Lea-Caton faced only two. As senior counsel for the applicant conceded, this difference necessarily meant the applicant would receive a more severe effective sentence. The Form 1 offences common to both men added further complexity, but could not be the primary driver of sentencing outcomes given the legal limitations on how far such offences can affect a sentence.

The Court also noted several other material differences between the two cases. The applicant had additional offences on indictment with no equivalent in Lea-Caton's matter, including the Pendle Hill newsagency robbery and the Artarmon LiquorLand robbery, together with five offences arising from an earlier incident at a Seven Hills takeaway shop. Lea-Caton, on the other hand, was sentenced while already serving a suspended sentence from the Drug Court, which affected the structure and commencement dates of his armed robbery sentences. The applicant also received a 25 per cent discount for early pleas of guilty, compared with only 10 per cent for Lea-Caton's late pleas.

Taking all these differences into account, the Court concluded that the complaint of disproportionality was without merit. Both sentences had individually been assessed as appropriate, and the differential was explained by the different number and nature of the offences for which each man was sentenced.

Orders Made

  • Leave to appeal against the severity of the sentences imposed by English DCJ was granted.
  • The appeal was dismissed.

Key Takeaways

  • The parity principle requires that co-offenders not face a marked sentencing disparity giving rise to a justifiable sense of grievance, but it does not require identical outcomes where the offending histories and circumstances differ materially.
  • A difference in the number of offences charged on indictment is a legitimate and significant basis for a heavier aggregate sentence, even where much of the underlying conduct is shared with a co-offender.
  • Form 1 offences play a limited role in sentencing: the extent to which they can increase a sentence is constrained, meaning they cannot bridge substantial differences in the indictable charges each offender faced.
  • The discount afforded for a plea of guilty is calibrated to the timing of the plea. The applicant's 25 per cent discount for early pleas was meaningfully different from Lea-Caton's 10 per cent for late pleas, which contributed to the sentencing differential.
  • In dismissing the appeal, the Court confirmed that where two sentences have each been independently assessed as appropriate exercises of discretion, a later comparison between them does not automatically displace either, particularly where the factual foundations for each sentence differ.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (aggravated armed robbery), s 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Postiglione v R (1997) 189 CLR (parity principle)
- Pearce v R (1998) 194 CLR 610 (sentencing for multiple offences)
- R v Spinks [2005] NSWCCA 459 (earlier appeal by same applicant)
- Lea-Caton v R [2006] NSWCCA 285 (co-offender's appeal)
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 (limits of Form 1 offences)
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Formosa [2005] NSWCCA 363
- R v Kerr [2003] NSWCCA 234
- R v Wurramarbra (1979) 1 A Crim R 291