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Court of Criminal Appeal 16 December 2008

Nguyen v R

[2008] NSWCCA 308

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE NEW FINDINGS BY RESENTENCING JUDGE APPEAL BY OTHER OFFENDER PARITY WITH CO OFFENDER'S RESENTENCE

Citation: Nguyen v R [2008] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 16 December 2008
Judge(s): McClellan CJ at CL, Grove J, Howie J

Background

The appellant and his co-offender pleaded guilty in the District Court to specially aggravated kidnapping and three counts of robbery in company. The offences involved luring a victim into a vehicle, assaulting him, and extracting money from him over successive days. The sentencing judge, Bennett DCJ, sentenced the appellant to a non-parole period of six years for the kidnapping, with concurrent three-year non-parole periods for the robberies.

The co-offender received a significantly lighter sentence at the original hearing. That sentence was subsequently quashed by the Court of Criminal Appeal on procedural fairness grounds: the original sentencing judge had received evidence from the appellant in the absence of the co-offender and his legal representative. The matter was remitted for resentencing before a different judge.

On resentencing, the co-offender received a markedly reduced sentence, structured to avoid returning him to custody. The appellant then sought leave to appeal his own sentence, arguing that the disparity between his sentence and his co-offender's much lighter resentence gave rise to a justifiable sense of grievance.

  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and the co-offender's substantially reduced resentence.
  • Whether the Court of Criminal Appeal should intervene in the appellant's sentence on parity grounds, even if the co-offender's resentence was arguably inadequate.

Decision

Grove J (with whom McClellan CJ at CL and Howie J agreed) dismissed the appeal. The central question was whether the disparity between the two sentences was of a kind that a reasonable observer would regard as producing a justified grievance, applying the objective test established in Lowe v The Queen and Postiglione v The Queen.

The co-offender's resentence arose from entirely fresh proceedings before a different judge, who made new factual findings. Those findings differed significantly from those of Bennett DCJ, including acceptance of a duress argument that the original sentencing judge had rejected. The resentencing judge was not bound by the original findings and approached the matter afresh.

Grove J observed that the co-offender's resentence was, arguably, manifestly inadequate. Where that is so, a sense of grievance generated by the disparity may no longer be a legitimate one. The principle is that a court will not intervene to reduce a sentence to a level disproportionate to the offender's own objective and subjective criminality simply because a co-offender received an insufficient sentence.

The appellant's original sentence reflected substantial leniency already, owing to favourable findings by Bennett DCJ about his sincerity and credibility. In those circumstances, reducing his sentence further to match an arguably inadequate co-offender's resentence would produce a result disproportionate to the gravity of his offending. The Court refused that course.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires an objective assessment: the test is not whether an offender subjectively feels aggrieved, but whether a reasonable mind, looking at the overall picture, would regard that grievance as justified.
  • Where a co-offender's resentence follows entirely fresh proceedings before a different judge, based on new factual findings, the disparity between the two sentences does not automatically give rise to a legitimate complaint by the other offender.
  • A stage can be reached at which the inadequacy of a co-offender's sentence is so great that any sense of grievance it generates can no longer be regarded as legitimate, meaning intervention to reduce the other sentence would be unwarranted.
  • The Court of Criminal Appeal confirmed it will not reduce a sentence on parity grounds if doing so would produce an outcome disproportionate to the offender's own objective and subjective criminality.
  • Procedural fairness errors in joint sentencing proceedings can lead to a co-offender being resentenced before a fresh judge on a clean slate, with that judge free to make findings inconsistent with those of the original sentencing court.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Hodges v R (1997) 95 A Crim R 85
- R v Boney [2001] NSWCCA 432
- R v Diamond (NSWCCA, unreported, 18 February 1993)
- R v Doggett (NSWCCA, unreported, 24 March 1996)
- R v Ilbay [2006] NSWCCA 251
- R v Wei Pan [2005] NSWCCA 114