Citation: Peninton v R; Dunningham v R [2008] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 26 September 2008
Judge(s): McClellan CJ at CL, Hislop J, Hoeben J
Background
The two applicants, a de facto couple, were convicted in the District Court following a violent early-morning home invasion. In the early hours of 2 November 2005, while affected by alcohol, they entered the home of a female neighbour across the street. The male applicant attacked a male visitor at the door, who was 58 years old and had a physical disability from polio, dragging him through the house and causing injuries requiring hospitalisation. The female applicant went to the bedroom and headbutted the sleeping female victim repeatedly, threatening to kill her, while the victim's five-year-old child lay in the same bed.
The female applicant was convicted of entering a dwelling knowing a person was inside with intent to commit a serious indictable offence (s 111(2) Crimes Act 1900, maximum 14 years) and assault occasioning actual bodily harm (s 59(1), maximum 5 years). The male applicant was convicted of those same offences and, additionally, malicious wounding of the male visitor (s 35(1)(a), maximum 7 years). Both applicants represented themselves in the appeal.
The District Court sentenced each applicant to an effective term comprising a two-year non-parole period followed by a further term of 18 months. They sought leave to appeal against sentence, arguing the sentences were outside the appropriate range, that relevant factors were not adequately considered, that findings were made without evidentiary support, and that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in imposing sentences outside an appropriate range for the offences
- Whether the sentencing judge failed to give adequate weight to specific mitigating factors personal to each applicant
- Whether factual findings made at sentencing were supported by the evidence
- Whether the sentences were manifestly excessive
- Whether it was an error to impose the same sentence on both applicants, given the differences between them (including the male applicant's additional conviction and different personal circumstances)
Decision
Hislop J (with whom McClellan CJ at CL and Hoeben J agreed) dismissed all grounds of appeal. The Court found that no error had been established in the sentencing judge's approach, and that nothing warranted the imposition of a lesser sentence. Leave to appeal was granted but the appeals were dismissed.
On the parity ground, which was raised only by the male applicant, the Court considered the principle that persons involved in the same criminal conduct should not receive sentences so disparate as to give rise to a justifiable sense of grievance. The Court noted that parity is assessed by reference to both objective and subjective circumstances. While the male applicant had an additional conviction and a longer total sentence (four years in aggregate, versus three years for the female applicant), the effective sentences on count 1 were identical.
The Court found the differences between the two applicants did not amount to a marked disparity warranting intervention. The female applicant's more serious criminal record was balanced against the male applicant's additional wounding conviction. The Court also rejected the male applicant's submission that his greater financial losses from the proceedings were relevant to parity, finding that financial consequences of imprisonment cannot produce a disparity because individuals of different means would otherwise receive different sentences for the same conduct.
The Court confirmed the applicable appellate standard: it will only interfere with a sentence if error is established and the court forms the positive opinion that a less severe sentence is warranted in law and should have been imposed, citing R v Simpson (2001) 53 NSWLR 704.
Orders Made
For each applicant:
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal reaffirmed that appellate interference with sentence requires both the identification of error and a positive finding that a lesser sentence is warranted in law and should have been passed.
- The parity principle (that co-offenders should not receive sentences so different as to cause a justifiable grievance) requires consideration of all objective and subjective circumstances, not a mechanical comparison of the headline sentence figures.
- A more serious criminal record held by one co-offender may be offset against an additional conviction held by the other when assessing whether parity has been achieved.
- Financial consequences suffered as a result of imprisonment are not relevant to parity between co-offenders. Accepting such arguments would mean wealthier offenders could claim greater disparity than less wealthy offenders convicted of identical conduct.
- Where a sentencing judge exercises a wide discretion and no marked disparity is apparent between the objective and subjective cases of co-offenders, imposing the same effective sentence on both will not constitute error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(a), 59(1), 61, 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- R v Simpson (2001) 53 NSWLR 704
- Postiglione v R (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- R v Mungomery (2004) 151 A Crim R 376
- R v Elmir [2003] NSWCCA 192
- R v Knight [2004] NSWCCA 145
- R v Bragias (1997) 92 A Crim R 330