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Court of Criminal Appeal 1 May 2009

John Roy Withers v R

[2009] NSWCCA 133

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY ROBBERY IN COMPANY APPELLANT RECEIVED SAME SENTENCE AS CO OFFENDER

Citation: John Roy Withers v R [2009] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 1 May 2009
Judge(s): Grove J, Buddin J, RA Hulme J

Background

The appellant and a co-offender, Nathan Streat, committed a robbery in company at a rural service station on the New South Wales south coast in March 2007. Streat wielded a steel bar to intimidate the female owner while the appellant took cigarettes and coins. Both men were arrested shortly after and later sentenced in the District Court at Bega.

Judge Conlon SC sentenced both men to identical terms: five years imprisonment with a non-parole period of three years. The sentencing judge assessed the offence as mid-range in objective seriousness and treated culpability as equal between the two men.

The appellant sought leave to appeal on a single ground: that receiving the same sentence as Streat gave him a legitimate sense of grievance, given differences in their personal circumstances.

  • Whether the sentencing judge erred by imposing identical sentences on two offenders of equal culpability where their personal circumstances differed materially
  • Specifically, whether the appellant's serious mental illness warranted a lesser sentence than his co-offender received
  • Whether the co-offender's status on a bond at the time of the offence was a distinguishing circumstance that should have produced a different outcome for the appellant

Decision

The Court of Criminal Appeal accepted that the parity principle (the principle that co-offenders should not receive sentences so different as to give one a justifiable grievance, unless their circumstances genuinely differ) was engaged here, but the question was whether the existing differences in circumstances justified a distinction in sentences rather than supporting equality. The Court found the sentencing judge had, in fact, acknowledged the appellant's stronger subjective case, noting the Crown itself had conceded as much below.

The critical distinguishing factor was the appellant's significant mental illness. Psychiatric evidence, including reports by Dr Stephen Allnutt, supported a diagnosis consistent with schizophrenia or schizoaffective disorder, complicated by long-term substance abuse. The Court held that mental illness rendering the custodial experience harsher than it would otherwise be is a recognised mitigating factor. The sentencing judge had given some weight to this, reflected in a generous non-parole ratio, but the Court concluded that the mental illness warranted a further, distinct reduction in the total sentence.

The Court rejected the Crown's submission that considering mental illness in reducing both the head sentence and the non-parole period amounted to double counting. Moderating the total term because of the harshness of custody and then separately adjusting the non-parole period to allow for extended parole supervision of treatment and medication are two distinct purposes, not the same consideration applied twice.

The Court found the appellant had a justifiable sense of grievance. A lesser sentence than Streat's was warranted, even if the distinction did not need to be substantial. The sentence was quashed and a shorter term substituted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • In lieu, the appellant sentenced to a total term comprising a non-parole period of 2 years 8 months and a balance of term of 1 year 10 months, dating from 26 March 2007, with eligibility for parole on 25 November 2009

Key Takeaways

  • Mental illness that makes the custodial experience materially harsher is a recognised mitigating factor capable of warranting a lesser sentence than that imposed on a co-offender of equal culpability.
  • The parity principle does not require identical sentences; where personal circumstances genuinely differ, different sentences may be appropriate and the absence of such differentiation may give rise to a justifiable grievance.
  • Considering mental illness when setting both the head sentence (harshness of custody) and the non-parole period (need for extended supervision of treatment) does not constitute double counting, because the two adjustments serve different purposes.
  • A Crown concession at first instance that the appellant had a stronger subjective case than his co-offender was a significant factor weighing in favour of a sentencing distinction on appeal.
  • The Court of Criminal Appeal confirmed that special circumstances (justifying a longer than usual parole period) can be grounded in the combined need to address mental illness and drug rehabilitation, not merely one factor alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum 20 years imprisonment)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Engert (1995) 84 A Crim R 67
- Regina v Szabo [2003] NSWCCA 341
- R v Hemsley [2004] NSWCCA 228
- Delfino v R [2008] NSWCCA 18
- Fisher v R [2008] NSWCCA 103
- R v Swan [NSWCCA 47]