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Court of Criminal Appeal 20 October 2008

Wilson v R

[2008] NSWCCA 245

Theft & propertyFirearms & weapons

Citation: Wilson v R [2008] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 20 October 2008
Judge(s): Beazley JA, Hislop J, Price J

Background

The applicant pleaded guilty in the District Court at Parramatta to armed robbery under s 97(1) of the Crimes Act 1900, having participated in a bank robbery at Summer Hill on 31 October 2006. He and a co-offender stole $9,500 from a Commonwealth Bank branch, with the applicant standing guard at the front door holding a shortened, non-functioning shotgun. He also pleaded guilty to a separate charge of taking and driving a conveyance without consent, arising from an unrelated incident three days later.

The sentencing judge, Bennett DCJ, imposed an effective sentence of 6 years and 9 months with a non-parole period of 5 years. The judge found special circumstances existed justifying a departure from the standard one-third balance of term, but the applicant argued the adjustment made was insufficient. The sentencing judge also imposed a parole order with specific conditions.

The applicant sought leave to appeal against the severity of the sentence on four grounds, including the adequacy of the special circumstances adjustment, alleged disparity with his co-offender's sentence, the validity of the parole conditions, and overall manifest excess.

  • Whether the sentencing judge adequately adjusted the non-parole period and balance of term after finding special circumstances existed
  • Whether an unjustifiable sentencing disparity existed between the applicant's sentence and the subsequent sentence imposed on his co-offender, El-Youssef
  • Whether the sentencing judge had the power to impose a parole order and specific parole conditions
  • Whether the overall sentence, taking into account totality and special circumstances, was manifestly excessive

Decision

The Court of Criminal Appeal found error in the sentencing judge's handling of special circumstances. Although the judge acknowledged special circumstances, the resulting ratio between the non-parole period and the balance of term did not reflect that finding sufficiently. The Court resentenced the applicant for the s 97(1) offence, fixing a non-parole period of 4 years and 6 months with a balance of term of 2 years, producing a ratio more consistent with the judge's own finding.

On the parole conditions ground, the Court found that the sentencing judge lacked the power to impose a parole order and specific conditions of parole at the time of sentence. That power rests with the Parole Authority, not the sentencing court. The parole order and conditions were accordingly quashed.

The disparity argument, based on the co-offender El-Youssef receiving what the applicant characterised as a more lenient sentence, was rejected. Price J examined El-Youssef's sentence and concluded it was, if anything, unjustifiably lenient given El-Youssef's more serious criminal history and the fact that he had committed the offences whilst on parole. The Court held that intervening to reduce the applicant's sentence in order to match a sentence that was itself too low would produce an inappropriate result.

The manifest excess ground was not upheld independently, but the identified errors in relation to special circumstances and the parole conditions were sufficient to justify resentencing under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Sentence imposed in the District Court for the s 97(1) offence quashed
  • Parole order and conditions of parole made by the sentencing judge quashed
  • For the s 97(1) offence (including the Form 1 matter), the applicant sentenced to imprisonment with a non-parole period of 4 years 6 months commencing 3 February 2007 and expiring 2 August 2011, with a balance of term of 2 years commencing 3 August 2011 and expiring 2 August 2013
  • Earliest date of eligibility for release to parole: 2 August 2011

Key Takeaways

  • A finding of special circumstances by a sentencing court must be reflected in a meaningful adjustment to the ratio between the non-parole period and the balance of term; acknowledging special circumstances without giving them adequate effect constitutes a sentencing error.
  • Sentencing courts in New South Wales do not have the power to impose parole orders or attach specific conditions of parole at the time of sentence; that function belongs to the Parole Authority.
  • Disparity between a co-offender's sentence will not automatically justify reducing an otherwise appropriate sentence. Where the co-offender's sentence is itself unjustifiably lenient, the Court of Criminal Appeal will decline to intervene on that basis.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may substitute a fresh sentence where identified errors establish that a different sentence was warranted in law.
  • The Court assessed the applicant's subjective circumstances, including his drug dependence and prospects for rehabilitation, in arriving at the appropriate balance of term, consistent with the purpose of the non-parole period and the need for supervised reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154A(1)(a), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- House v The King (1936) 55 CLR 499
- Postiglione v The Queen (1997) 189 CLR 295
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- Webster v R [2006] NSWCCA 346
- R v Kollas & Mitchell [2002] NSWCCA 491
- R v Kairouz [2005] NSWCCA 247