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Court of Criminal Appeal 26 September 2008

Tuifua v Regina; Lee v Regina; Niuqila v Regina

[2008] NSWCCA 224

Also reported as 189 A Crim R 1
Fraud & dishonesty
CRIMINAL LAW SENTENCING OFFENDERS PARITY DISPARITY BETWEEN SENTENCES JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Tuifua v Regina; Lee v Regina; Niuqila v Regina [2008] NSWCCA 224
Court: Court of Criminal Appeal, New South Wales
Date: 26 September 2008
Judge(s): Beazley JA; Grove J; Hidden J

Background

Three co-offenders, referred to here as the applicants, each pleaded guilty in the District Court to conspiracy to commit armed robbery. The offences arose from events between 28 June and 2 July 2005. Each applicant received a discount of 25 per cent for the utilty of their early guilty pleas and was sentenced by Norrish DCJ in January 2007.

Three other participants in the same conspiracy, Sinamoni, Dodds, and Robinson, pleaded not guilty and were convicted at trial. A different District Court judge, Tupman DCJ, subsequently sentenced Sinamoni and Dodds each to a total sentence of 8 years, comprising a non-parole period of 5 years and a balance of term of 3 years. Robinson's matter was stood over and was not relevant to the appeal.

The applicants sought leave to appeal against their sentences. Their central complaint was that, having pleaded guilty, they ended up serving sentences whose structure produced a justifiable sense of grievance when compared to the sentences imposed on co-offenders who had contested their guilt and been convicted.

  • Whether the disparity between the applicants' sentences and those imposed on their co-offenders Sinamoni and Dodds gave rise to a justifiable sense of grievance warranting appellate intervention.
  • Whether the sentences imposed by Norrish DCJ were otherwise manifestly excessive.
  • Whether the sentences imposed on the co-offenders by Tupman DCJ were so lenient that reducing the applicants' sentences would itself amount to an affront to the proper administration of justice.
  • What the correct sentencing approach is for a common law offence such as conspiracy, including what maximum penalty should guide the sentencing court.

Decision

The Court of Criminal Appeal, with Beazley JA delivering the principal judgment and Grove and Hidden JJ agreeing, granted leave to appeal and allowed the appeals. The court accepted that each applicant had a justifiable sense of grievance when comparing their sentences to those received by co-offenders who had been convicted after trial.

The court confirmed that disparity in sentencing co-offenders is not merely a personal grievance. It also creates an appearance of injustice in the community, and that is sufficient to warrant appellate intervention, even where the original sentencing judge applied correct principle. The court applied the established approach from the High Court in Lowe v R and Postiglione v R.

Although the sentences imposed by Norrish DCJ were found not to be manifestly excessive in isolation, the court also found that the sentences imposed by Tupman DCJ on Sinamoni and Dodds were not so lenient that reducing the applicants' sentences would itself be improper. The court therefore reduced the notional starting point for each applicant to 8 years, adjusting upward or downward for individual circumstances, and re-sentenced accordingly.

On the question of how to sentence a common law conspiracy offence, the court confirmed that the proper approach is to have regard to the maximum penalty for the corresponding substantive offence. The substantive offence here was armed robbery with an offensive weapon under s 97(1) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment.

Orders Made

  • Leave to appeal against sentence granted in respect of each applicant.
  • Appeals allowed; sentences imposed by Norrish DCJ in the District Court quashed.
  • In lieu of the original sentences, the following were imposed:
  • Tuifua: Non-parole period of 3 years 3 months (1 July 2005 to 30 September 2008); balance of term of 2 years 6 months, expiring 30 March 2011; earliest parole date 30 September 2008.
  • Lee: Non-parole period of 3 years 2 months (1 January 2006 to 28 February 2009); balance of term of 2 years 7 months, expiring 30 September 2011; earliest parole date 28 February 2009.
  • Niuqila: Non-parole period of 4 years (1 January 2006 to 31 December 2009); balance of term of 2 years, expiring 31 December 2011; earliest parole date 31 December 2009.
  • Post-delivery amendment: the commencement date of a District Court sentence imposed on Lee on 14 April 2008 was varied under s 59 of the Crimes (Sentencing Procedure) Act 1999, so that sentence and non-parole period each commence on 1 February 2009.

Key Takeaways

  • Disparity between the sentences of co-offenders can justify appellate intervention even where the original sentence was not itself manifestly excessive. The principle, confirmed by the Court of Criminal Appeal applying Lowe v R and Postiglione v R, is that disparity creates both a justifiable sense of grievance in the applicant and an appearance of injustice to the community.
  • A conviction after trial does not automatically insulate a co-offender's sentence from the parity analysis. The question is whether the overall comparison produces an unjust result for the applicant who pleaded guilty.
  • Where an applicant seeks a sentence reduction on parity grounds, the court must first consider whether the co-offender's sentence is so low that reducing the applicant's sentence would itself be an affront to the proper administration of justice. Here, no such conclusion was reached.
  • For common law conspiracy offences, the sentencing court looks to the maximum penalty applicable to the corresponding substantive offence. In this case, that maximum was 20 years under s 97(1) of the Crimes Act 1900.
  • Individual circumstances remain relevant on re-sentencing for parity. The Court of Criminal Appeal set a common notional starting point of 8 years and then adjusted each applicant's sentence to reflect their particular position.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery with offensive weapon)
- Criminal Procedure Act 1986 (NSW), s 166 (further offences taken into account)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59 (amendment of sentence)
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)

Cases:
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Hoar [1981] HCA 67; (1981) 148 CLR 32
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v VAA [2006] NSWCCA 44
- R v Bloomfield (1998) 44 NSWLR 734
- R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300
- R v Salcedo [2004] NSWCCA 430
- Qing An v Regina [2007] NSWCCA 53
- Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58
- R v Draper (NSWCCA, 12 December 1986, unreported)
- R v Diamond (NSWCCA, 18 February 1993, unreported)