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19
Court of Criminal Appeal 7 March 2007

Qing An v Regina

[2007] NSWCCA 53

Assault & violenceTheft & property
CRIMINAL LAW IRREGULARITY FAILURE TO DISCHARGE JURY SENTENCING TERM OF SENTENCE FOLLOWED BY NON PAROLE PERIOD

Citation: Qing An v Regina [2007] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 7 March 2007
Judges: Beazley JA; Hulme J; Hislop J

Background

The appellant was convicted by a jury in the District Court of eight counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). Judge Dodd sentenced him to a total effective sentence of 12 years and 3 months, with a non-parole period of 10 years. The maximum penalty for each offence was 20 years' imprisonment.

The offences were committed with a co-offender who pleaded guilty and received an overall sentence of 11 years with a non-parole period of 8 years and 3 months for these and additional offences.

The appellant challenged both his conviction and his sentence on several grounds. On conviction, he argued that an irregularity during jury deliberations, namely the jury's discovery of a syringe in the pocket of his jacket, which was an exhibit, had caused irreversible prejudice. On sentence, he contended that the sentencing judge had misapplied the relevant legislation, failed to impose properly individualised sentences, and produced an outcome that was manifestly excessive when measured against totality, parity, and general sentencing levels for comparable offences.

  • Whether the trial judge erred by failing to discharge the jury after it discovered a syringe in a court exhibit during deliberations
  • Whether the directions given to the jury adequately addressed the prejudice arising from that irregularity
  • Whether the sentencing judge correctly applied s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in structuring individual sentences
  • Whether the sentencing judge erred by imposing an escalating scale of sentences across the grouped offences without adequate justification in the relative seriousness of each offence
  • Whether the total sentence was manifestly excessive by reference to the principle of totality
  • Whether the appellant had a legitimate sense of grievance arising from disparity with his co-offender's sentence

Decision

Conviction (majority: Beazley JA and Hislop J)

The majority held that the test where a jury irregularity occurs is whether the court can be satisfied the irregularity did not affect the verdicts, and that the jury would have returned the same verdicts regardless. Applying that test, the majority found the trial judge's directions were adequate and that no error arose from the refusal to discharge the jury. The conviction appeal was dismissed.

Conviction (Hulme J dissenting in part, but applying the proviso)

Hulme J dissented on the irregularity issue, concluding that the discovery of the syringe fell within the exceptional category of cases where no direction could overcome the prejudice caused. However, his Honour considered the evidence against the appellant on the relevant counts so compelling that conviction was inevitable, and applied the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) to dismiss the conviction appeal in any event.

Sentence (unanimous: all three judges)

The court held that the sentencing judge had correctly applied s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by setting the term of the sentence before fixing the non-parole period for each offence. The parity ground also failed: because the appellant and the co-offender were equally involved in the offences, and their individual circumstances differed, the appellant had no legitimate sense of grievance about the disparity between their sentences.

Sentence (majority: Beazley JA and Hislop J, on the escalating scale point)

The majority found that the sentencing judge erred in imposing an escalating scale of sentences of 7, 8, and 9 years across grouped offences where there was no meaningful difference in the seriousness of the individual offences. The escalation could not be justified by the principle of accelerating criminality alone. This produced sentences that were manifestly excessive for the later counts, and leave to appeal against sentence was granted. Those sentences were quashed and replaced with revised terms.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence for count 1 dismissed (6 years, including a non-parole period of 4 years and 6 months, commencing 25 October 2002).
  • Appeal against sentences for counts 2 and 5 dismissed (7 years each, including a non-parole period of 5 years and 3 months each, commencing 25 October 2002).
  • Appeals against sentences for counts 6, 7, 8, 9 and 10 allowed; those sentences quashed.
  • Counts 6 to 9 each re-sentenced to a non-parole period of 5 years with a balance of term of 1 year and 8 months, with each non-parole period commencing at 6-month intervals from 25 October 2003.
  • Count 10 re-sentenced to a non-parole period of 4 years commencing 25 April 2006 with a balance of term of 2 years and 6 months.
  • Date of first eligibility for parole recorded as 25 April 2010.

Key Takeaways

  • Where a jury irregularity occurs during deliberations, the operative question is whether the court can be satisfied the irregularity did not affect the verdicts. The adequacy of the trial judge's corrective directions is central to that assessment.
  • A dissenting judge may nonetheless apply the s 6 proviso under the Criminal Appeal Act 1912 (NSW) to dismiss a conviction appeal where the evidence of guilt was so compelling that conviction was inevitable, even if an irregularity is accepted.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge must first fix the term of a sentence and then set the non-parole period; the Court of Criminal Appeal confirmed that order of steps was followed correctly in this case.
  • An escalating scale of sentences across grouped offences is not wrong in principle, but it must reflect genuine differences in the seriousness of the individual offences. Imposing escalating sentences without that foundation is a sentencing error capable of producing a manifestly excessive total.
  • Parity between co-offenders is grounded in fairness and whether the disparity engenders a legitimate sense of grievance. Equal participation in the offences and differing individual circumstances can together defeat a parity ground, even where the sentencing outcomes differ.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33, 44
- Criminal Appeal Act 1912 (NSW) ss 6, 6(3), 10(1)(a)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1996) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- Johnson v The Queen (2004) 78 ALJR 616
- Festa v R (2001) 208 CLR 593
- Wilde v R (1988) 164 CLR 365
- Markarian v The Queen (2005) 79 ALJR 1048
- Mill v The Queen (1988) 166 CLR 59
- R v K (2003) 59 NSWLR 431
- R v Gorman [2002] NSWCCA 516
- R v Bavadra (2000) 115 A Crim R 152
- R v Swadling [2004] NSWCCA 421
- R v Henry & Ors (1999) 46 NSWLR 346
- R v El-Andouri [2004] NSWCCA 178
- R v Hung Lo (2005) 159 A Crim R 71
- R v Marsland (NSWCCA, 17 July 1991, unreported)
- R v Rudkowsky (NSWCCA, 15 December 1992, unreported)
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