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Court of Criminal Appeal 21 August 2008

TA v R

[2008] NSWCCA 179

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE GROUNDS OF APPEAL PRINCIPLE OF PARITY WHETHER MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: TA v R [2008] NSWCCA 179
Court: New South Wales Court of Criminal Appeal
Date: 21 August 2008
Judge(s): McClellan CJ at CL; Simpson J; Hislop J

Background

The applicant was a 17-year-old woman who participated in an armed robbery at a general store in Coonabarabran in late 2005. She was part of a five-person criminal enterprise that involved planning the offence, selecting the target, obtaining weapons, and using false number plates on the getaway vehicle. The applicant entered the store first to check whether it was safe and whether closed-circuit television cameras were present, then signalled co-offenders to enter. One co-offender pointed a shortened firearm at the store owner's stomach and demanded money.

The applicant initially pleaded not guilty and a trial commenced. After the close of the Crown case, the trial judge declined to leave a defence of duress to the jury, and the applicant changed her pleas to guilty on both counts: attempted robbery armed with a dangerous weapon, and unauthorised possession of a shortened firearm.

The sentencing judge imposed a total term of three years' imprisonment with a non-parole period of 18 months. The applicant sought leave to appeal against the severity of that sentence, raising three grounds.

  • Whether the sentencing judge erred by failing to find that the applicant had acted under duress
  • Whether the principle of sentencing parity was engaged, given that co-offenders received substantially shorter sentences
  • Whether the sentence imposed was manifestly excessive in all the circumstances, including the applicant's age, background, and evidence of rehabilitation

Decision

Ground 1: Duress. All three judges agreed that the first ground, concerning the refusal to find duress at sentencing, should be rejected. The trial judge had declined to leave duress to the jury, and the Court was satisfied no error arose from the sentencing judge's approach on this point.

Ground 2: Parity. The applicant's co-offenders received significantly lighter sentences, but the Court held that the parity principle (which requires that sentences for co-offenders not diverge unjustifiably) was not relevant here. The co-offenders had pleaded guilty to a different, less serious charge carrying a maximum penalty of 14 years, while the applicant was convicted of an offence carrying a 25-year maximum. Two juvenile co-offenders were dealt with in the Children's Court, and a third received a discount for assistance to authorities. These differences were sufficient to explain and justify the sentencing disparity.

Ground 3: Manifest Excess. This ground produced a split in the Court. McClellan CJ at CL and Hislop J held that the sentence was not excessive, noting the seriousness of the offence and the need for both personal and general deterrence. Simpson J took a different view, concluding that the sentencing judge gave inadequate weight to the applicant's age (17 years and 2 months, with no prior offending), the uncharacteristic nature of the conduct, and the compelling evidence of complete rehabilitation. Simpson J also expressed concern that the sentencing judge had described the offences as committed when the applicant was "proximate to the age of majority," which understated the significance of her youth.

The majority view prevailed. Leave to appeal was granted but the appeal was dismissed, with McClellan CJ at CL and Hislop J forming the majority. Simpson J would have allowed the appeal and resentenced the applicant to a shorter term producing immediate release.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

(Note: Simpson J proposed alternative orders allowing the appeal and providing for immediate release, but those orders did not carry the majority and were not made.)

Key Takeaways

  • The parity principle does not apply where co-offenders are sentenced for materially different offences carrying different maximum penalties, even if the underlying criminal conduct arose from the same events.
  • A strong subjective case, including youth, good rehabilitation prospects, and a violent relationship that drew an offender into criminal conduct, does not automatically displace the need for a sentence that serves general deterrence for serious armed offending.
  • The decision illustrates that appellate intervention for manifest excess requires more than a favourable subjective case: the applicant must demonstrate that the sentencing judge failed to give adequate weight to relevant factors, not merely that a different weight could have been applied.
  • Simpson J's dissent highlights that the significance of an offender's precise age below 18, and the absence of prior offending, may warrant careful scrutiny on appeal, particularly where rehabilitation evidence is described as compelling.
  • In dismissing the appeal, the majority confirmed that the proper charging decision (which determined the applicable maximum penalty) was a legitimate basis for differentiating the applicant's sentence from those of co-offenders dealt with under lesser charges.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(1)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295