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Court of Criminal Appeal 26 May 2008

Dalton v R

[2008] NSWCCA 108

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING PROPORTIONALITY SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Dalton v R [2008] NSWCCA 108
Court: New South Wales Court of Criminal Appeal
Date: 26 May 2008
Judge(s): James J, Hislop J, Hoeben J

Background

The applicant, an 18-and-a-half-year-old man, pleaded guilty to two counts of robbery in company following an incident on a train between Lapstone and Glenbrook in September 2006. He and two younger associates approached two teenage boys carrying pushbikes and stole mobile phones, iPods, and wallets from both victims. The applicant was the most active offender, threatening and using physical violence, including punching the victims when they gave chase.

In the District Court, the applicant received concurrent sentences of four years' imprisonment for each offence, with a non-parole period of 18 months. One co-offender, DB, was dealt with separately in the Children's Court and received 30 hours of community service for the same offences.

The applicant sought leave to appeal against his sentence on two grounds: that the disparity with his co-offender's sentence produced a justifiable sense of grievance, and that the sentence was manifestly excessive.

  • Whether the difference between the applicant's four-year term and his co-offender's community service order gave rise to a legitimate parity (or proportionality) grievance.
  • Whether the head sentence of four years' imprisonment was manifestly excessive in all the circumstances.

Decision

Ground 1: Parity with the co-offender

Hislop J acknowledged that courts may have regard to sentences imposed on co-offenders dealt with in the Children's Court, even though the sentencing regimes differ significantly. However, the court found that the circumstances of the two offenders were not remotely comparable. The applicant was 18 at the time of the offences; DB had just turned 14. The applicant had a prior history of violence and was on conditional liberty (in breach of both a probation order and a bond) when the offences were committed. DB had no prior record and was not subject to any conditional liberty. The applicant also played the leading role in the robberies. These distinctions fully explained the sentencing differential and no parity grievance arose.

Ground 2: Manifest excess

The sentencing judge applied the guideline in R v Henry, took a starting point of five and a half years, discounted 25 per cent for the early guilty pleas, and arrived at a head sentence of four years. Hislop J accepted that the head sentences sat toward the upper end of the available range but were not outside it. Critically, that result was balanced by a lenient non-parole period of 18 months and the order that the sentences run concurrently. No identifiable error was established in the exercise of the sentencing discretion.

As a court of error, the Court of Criminal Appeal confirmed that it will only intervene where a sentencing error is demonstrated and where it forms a positive opinion that a less severe sentence should have been passed. Neither condition was satisfied here.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Parity principles can apply, at least in a limited way, when a co-offender is sentenced in the Children's Court rather than as an adult, but the substantially different sentencing regimes significantly reduce the utility of direct comparisons.
  • Where co-offenders differ markedly in age, criminal history, role in the offence, and the conditions under which they offended, those differences are capable of fully accounting for a significant disparity in outcomes.
  • A head sentence toward the upper end of the available range does not, of itself, constitute manifest excess if it is offset by a lenient non-parole period and concurrent sentence structure.
  • The Court of Criminal Appeal reiterated its role as a court of error: intervention on sentence requires both an identifiable error and a positive finding that a lesser sentence was warranted in law.
  • Offending while on conditional liberty (such as probation or a bond) remains a significant aggravating factor in sentencing, distinct from general prior criminal history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Murchie (1999) 108 A Crim R 482
- R v Poihipi [2001] NSWCCA 306
- Postiglione v The Queen (1995-1996) 189 CLR 295
- R v Boney [2001] NSWCCA 432
- R v Douglas [2006] NSWCCA 94
- Markarian v R (2005) 215 ALR 213
- R v Simpson (2001) 53 NSWLR 704
- Lowe v The Queen (1984) 154 CLR 606